Opinion
F080952
10-26-2020
In re B.R. et al., Persons Coming Under the Juvenile Court Law. AMANDA B., Petitioner and Respondent, v. KYLE R., Objector and Appellant.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Falk for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAT-17-003179)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Falk for Petitioner and Respondent.
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Kyle R., biological father of minors B.R. and E.R. (father), appeals from the trial court's judgment declaring the children free of father's custody and control and terminating father's parental rights. The trial court found by clear and convincing evidence that father had abandoned the children within the meaning of Family Code section 7822 and the order was in the children's best interests. Father appeals, contending the court applied the "wrong legal test" in determining whether he abandoned the children and that such a finding was supported by insufficient evidence. Finding no error, we affirm.
All further undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2017, mother, Amanda B. (mother), filed a petition to declare seven-year-old B.R. and four-year-old E.R. free from the parental custody and control of father pursuant to section 7822. The petition alleged father had not seen the children since July 4, 2016, and had not sent Christmas gifts, birthday cards, or presents. It further alleged father had not financially supported the children and was over $42,000 in arrears in child support. On October 20, 2016, a family court hearing was held at which father was ordered to submit to drug testing prior to any visitation, and he had tested positive for methamphetamine. At the time the petition was filed, the visitation order that was put in place on February 7, 2017, stated father shall submit to three consecutive drug tests seven days apart before any further moving papers could be filed. Since that time, father had made no attempt to submit to drug testing and had not communicated with the children.
The trial court determined the petition had met the statutory requirements. Father contested the petition, and the court appointed him counsel.
Family court services filed an investigator's report on June 20, 2018. B.R. reported to the investigator that he did not remember the last time he saw his father but acknowledged it had been a long time ago. E.R. was too young and did not have enough understanding of the abandonment proceedings in order to give a statement.
Father "readily admitted" to the investigator of having a substance abuse problem from June 1, 2016, though October 2017, and reported the last time he had visitation with the children was on July 4, 2016. Father reported mother had requested he drug test on or about July 5, 2016, and he provided a positive test. According to a family law court order, if he provided a positive test, visitation would be suspended until he was able to provide three negative tests seven days apart. Father reported he continued to use methamphetamine until October 11, 2017. Two days later, he admitted himself to the Community Behavioral Health Center on a voluntary inpatient basis in Fresno County. After staying for eight days, he voluntarily discharged and returned to Bakersfield to stay with his mother.
Father testified he contacted mother in October 2017 and told her he would like to see the children. Father stated mother agreed he could contact her to possibly schedule a visit, but he could not subsequently get a hold of her. He filed a motion with the court to reinstate visitation on November 13, 2017, with a hearing calendared for December 21, 2017. Father intended to provide the court with three drug tests at the time of the December 21, 2017 hearing but because mother had already filed the abandonment petition, the court would not move forward until the abandonment matter was resolved. Father reported he was receiving services through Kern County Mental Health for psychiatric and therapeutic services and was attending NA meetings on a regular basis. Father reported sending Christmas gifts to the children in 2016 and 2017, and that he spoke with B.R. on his birthday in 2017. He stated he would like to have a relationship with his children.
Mother reported to the investigator that her relationship with father ended in the latter part of 2013. Father's contact with the children had been inconsistent following the separation. She and father had agreed to father having the children on midweek day and alternating weekends. Father did not adhere to exchange times as agreed, his visits were inconsistent, and she had knowledge he was using drugs. For this reason, she filed a petition for custody and visitation in late 2014. The initial visitation order was alternating weekends from Friday to Sunday with midweek visitation by mutual agreement. The court issued drug testing orders. Father's visitation became more consistent except when mother requested that he drug test, and he tested positive. Mother reported she allowed telephone visitation between father and the children in December 2016, twice in January 2017, and once in February 2017 and March 2017.
Mother reported she wanted to initiate the abandonment proceedings in February 2017 but her attorney advised her she would have to wait until the one-year mark. It was a coincidence that father filed his request to reinstate visits around the same time. She reported B.R. experienced emotional difficulties from father's inconsistent contact and had received counseling to help him cope with his feelings. She reported her husband is the children's father figure and would like to adopt the children if her petition were granted.
The investigator recommended the petition be denied. The investigator opined father did not intend to abandon the children and believed he filed his petition to reinstate visitation without being aware mother intended to file the abandonment petition.
At the hearing on August 9, 2019, father testified he separated from mother in 2014. After 2014, he never had thoughts of not ever seeing his children again. Father testified he last visited the children on July 4, 2016, and tested positive for methamphetamine on July 5, 2016. Because of this positive test, there was a court order suspending his visitation until he provided three clean drug tests seven days apart. He did not provide the court or mother with the clean drug tests. In 2016, father was living and working in Fresno, having lived in Fresno for almost two years.
Father testified he went to Fresno Behavior County Facility in October 2017 for drug rehabilitation. His drug of choice was methamphetamine. Father's total stay in rehab was 13 days, after which he moved to Bakersfield in the last week of October 2017. Subsequent to his stay in rehab, he contacted mother to ask about visitation, and she did not allow him to visit. At that point, there was still an order in place suspending his visits. Father filed a request for order in the family law action requesting to resume visitation. He intended to provide clean drug tests at the time of the family law hearing. Because mother filed the abandonment paperwork, the family law proceeding was put on hold.
When father was released from the program and moved to Bakersfield, he did a county follow up with the substance abuse behavior health program and did a nine-month program. He graduated to a 12-month program where he sees a psychiatrist periodically. He was drug testing as part of the programs but did not provide mother or the court with proof of three clean drug tests. The drug tests he had at the time he filed his request for order were five days apart. He had not brought them to the abandonment hearing.
Father testified there was a child support order. When asked by mother's counsel if April 2016 was the last time he paid support, father said he did not recall but he did not believe that was correct. Father testified he believed he last paid child support in December 2017 through wage garnishment. He stated he thought his wages were garnished for child support when he worked at the Dollar Tree in Bakersfield in November or December 2017, but did not recall providing the department of child support services with information that he was working there. Mother's counsel asked father if he could be mistaken about the last time he paid child support if there was no record of payments past April 2016, and father responded, "It is possible, yes." Father recalled sending gifts but did not know if they were for birthdays or holidays.
Father testified he realized that his drug use was an independent action of his that hurt his ability to see the children. Between the time of the last visit on July 4, 2016, and the filing of the abandonment proceeding, father had mother's address and phone number. He did not send any letters or cards to the children through the mail.
Mother testified father last visited with the children on July 4, 2016, and he tested positive for methamphetamine, amphetamines, and marijuana shortly after. Father's next contact was in October or November 2017, when he called and told her he had hit rock bottom and was moving back to Bakersfield. Father told mother he may want to start having a relationship with the children and begin with telephone conversations but made no attempt to call. When father called mother, she had already called her attorney's office to begin the abandonment paperwork. Father gave one Christmas present to the children in December 2016. Between July 4, 2016, and November 2017, she did not receive any communication from him requesting visitation. Mother testified father had three phone calls with the children in early 2017.
The trial court requested briefs on the issues of intent to abandon and whether there was a "leaving" by father as opposed to a judicial "taking." The court requested the parties to address In re Jacklyn F. (2003) 114 Cal.App.4th 747 (Jacklyn F.) and In re Amy A. (2005) 132 Cal.App.4th 63 (Amy A.), which dealt with the issue of when court orders can constitute a "leaving," and In re H.D. (2019) 35 Cal.App.5th 42 (H.D.), which dealt with the issue of where a parent does not have contact with the children due to drug addiction.
Counsel for the children and mother argued in their briefs that mother's petition should be granted. The children's counsel argued that father had voluntarily left the children with mother for the statutory period to engage "in a lifestyle that was not safe for the children to be around" and had not provided support for or communicate with the children during that period. Mother argued any judicial "taking" was converted to a "leaving" by father's failure to (1) get help for his drug abuse, (2) exercise supervised visitation, and (3) provide clean drug tests. Mother argued father intended to leave the children during the period of June 2016 through October 13, 2017, as the evidence only supported that father intended to use drugs during this period.
Father argued in his brief that "the main fact the court should consider is that [father] took affirmative action to address his addiction; [and] took affirmative action to request visitation and proved his intent to stay in his children's lives by taking such affirmative action." Father argued his filing of an action to modify the court order suspending visitation and request for a modification of the visitation order negated any intent to abandon. Father urged that the year of "non contact should not be considered[,] as ... [father's] visitation was suspended and therefore by court order was not allowed to have contact with his children." Father argued, "[t]he best evidence of [father's] intent regarding his children is his request to resume contact and maintain contact and his parental role with them."
The trial court issued a detailed written decision granting mother's petition to terminate father's parental rights. The court found mother had shown by clear and convincing evidence that father abandoned the children within the meaning of section 7822 and the order was in the best interest of the children.
DISCUSSION
Father contends the trial court applied the "wrong legal test" and because, as he contends, the ultimate findings were supported by insufficient evidence, such an error prejudiced father and the order granting mother's petition must be reversed. Because of the nature and potential overlap of father's claims, we find it more efficient to first address father's contention that the trial court's findings were supported by insufficient evidence and address father's specific arguments regarding any legal error the trial court made where relevant within that analysis.
Section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (§ 7802; Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009 (Allison C.).) "A declaration of freedom from parental custody and control ... terminates all parental rights and responsibilities with regard to the child." (§ 7803.)
A court may declare a child free from parental custody and control if the parent has abandoned the child. (§ 7822; Allison C., supra, 164 Cal.App.4th at p. 1010.) Abandonment may occur when "[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).) " 'The ... failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent ... ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent....' (§ 7822, subd. (b).)" (Allison C., supra, 164 Cal.App.4th at p. 1010.) "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." (Amy A., supra, 132 Cal.App.4th at p. 68.) It is not required that the statutory period be the period immediately preceding the filing of the petition. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 922.)
We review the family court's findings under section 7822 for substantial evidence. " '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].' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.) "In determining if substantial evidence exists, we consider the evidence in a manner that favors the order being challenged." (Adoption of A.B., supra, 2 Cal.App.5th at p. 922.) We do not evaluate "the credibility of witnesses, resolve conflicts in the evidence or determine the weight of the evidence." (In re E.M. (2014) 228 Cal.App.4th 828, 839.) On appeal, the appellant bears the burden of establishing insufficient evidence to support the trial court's findings. (Ibid.) We must account for the clear and convincing standard of proof. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
We review father's arguments that the trial court applied an incorrect legal test for abuse of discretion. (See Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452 [" ' "[T]he abuse of discretion standard measures whether, given the established evidence, the lower court's action 'falls within the permissible range of options set by the legal criteria.' " ' "].)
The uncontroverted facts in the present case is that father last visited the children on July 4, 2016, had a handful of telephone calls with them in early 2017, and gave them a Christmas present in December 2016. Father used drugs from June 2016 through October 2017. During that time, the family court ordered that visits be suspended due to drug use, and in order to reinstate visitation, father would have to provide clean drug tests. Father never provided clean drug tests. In November 2017, father filed a request to reinstate visitation. The primary issues below were whether father "left" the children for the statutory period within the meaning of the statute and whether he did so with the intent to abandon them. Father appears to challenge the trial court's findings on both issues.
We first turn to the issue of whether father "left" the children within the meaning of section 7822. While 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, voluntary inaction on the part of the parent can convert a "taking" to a "leaving" with intent to abandon the child. (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504 (Marriage of Jill & Victor D.).) Indeed, "[n]umerous appellate decisions have long agreed that the leaving-with-intent-to-abandon-the-child requirement of section 7822 can be established by evidence of a parent's voluntary inaction after an order granting primary care and custody to the other parent." (Ibid.)
Father argued below that though he did not visit his children for the statutory period, he did not "leave" because his visitation was suspended and "therefore by court order [he] was not allowed to have contact with his children." The trial court rejected father's argument, finding that father's failure to provide clean drug tests to the court to resume visitation constituted inaction "amount[ing] to a voluntary surrender of his parental role," citing Amy A., supra, 132 Cal.App.4th at page 70 [substantial evidence supported finding that the father "left" the child because "repeated inaction in the face of the custody order" demonstrated he "voluntarily surrendered his parental role"].
The trial court rejected father's argument that his drug problem prevented him from seeing his children. The trial court distinguished the present case from H.D., supra, 35 Cal.App.5th 42, where the appellate court reversed an order terminating parental rights based on abandonment where the mother had allowed the father to take custody of the children while she sought substance abuse treatment. In H.D., the mother had promptly completed 30 days of residential rehabilitation and participated in a six-month intensive outpatient program, got sober, and returned to court to seek modification of the custody order. (Id. at pp. 45, 51.) The H.D. court found the mother's actions did not support a finding she voluntarily relinquished her parental role but that she temporarily suspended her parental duties to address the obstacles hindering her from fulfilling her parental role and thus she did not "leave" her children within the meaning of the statute. (Id. at p. 51.) The H.D. court noted: "To be clear, our conclusion does not mean that every parent who loses custody of their child because of addiction has not 'left' that child. If mother had not been as diligent as she was in seeking treatment, our conclusion might be different." (Id. at pp. 51-52.) The trial court here found that because father continued to use drugs from June 2016 through October 2017 (a period in excess of the statutory period) and only spent eight or thirteen days in rehab before attempting to reinstate visitation, his case was factually distinguishable from H.D.
Father argues on appeal the trial court erred by distinguishing the present case from H.D. and that H.D. supports his position because the record contained evidence that when father moved to Bakersfield in October/November 2017, he completed a nine-month substance abuse program and had graduated to a 12-month program and was receiving mental health services. We agree with the trial court that H.D. is substantively distinguishable. We are sympathetic to the plight of those who battle drug addictions and commend father for eventually seeking and participating in treatment. On this record, however, because there is no evidence father made any effort to treat his addiction between the last time he saw his children in July 2016 and when he finally sought treatment in October 2017 (a period of time exceeding one year) even though he knew his using drugs and failing to seek treatment was hurting his ability to see his children, we conclude the trial court's finding that father "left" the children was supported by substantial evidence. We add in the same vein as the H.D. court, had there been some evidence father had attempted to work on his addiction or provide clean drug tests during the statutory period, our conclusion may have been different.
Father characterizes the trial court's focus on father's drug use as applying "the wrong legal test." Father argues this focus inappropriately equated the matter to a juvenile dependency proceeding, where a parent's progress and engagement with prespecified reunification services is a relevant consideration in a court's determination of whether they should be reunified with their children. We disagree with father's characterization. We do not find the trial court used father's drug use in an inappropriate way. Under the facts of the present case, including the arguments father posed below, father's drug use in spite of a court order suspending his visits unless he provided clean drug tests was relevant to the court's determination of whether he "left" the children. As we have explained, the trial court reasonably concluded father's voluntary action of continuing to use drugs prevented him from reestablishing visitation. The trial court did not incorrectly apply any juvenile dependency standards. Rather, the court reasonably viewed father's drug use in the context of whether his lack of contact with his children constituted a "leaving" within the meaning of section 7822, and reasonably and appropriately relied on relevant case law like Amy A. and H.D. We find no legal error resulting from the trial court's focus on father's drug use and/or lack of diligence in working on treating his drug addiction for the statutory period.
Father also argues the trial court "applied the wrong legal test" when it determined there was no "judicial decree" in distinguishing the present case from Jacklyn F., supra, 114 Cal.App.4th 747 and, accordingly, the court erred because Jacklyn F. supports his position.
In Jacklyn F., the mother had left the children with the maternal grandparents; after three days, the grandparents filed a petition for guardianship. (Jacklyn F., supra, 114 Cal.App.4th at p. 749.) The mother was present at the hearing, opposed the petition, and sought to regain custody. (Id. at p. 756.) The mother told the investigator she had only left the children with the grandparents so she could get her life together. The court granted the guardianship. The appellate court noted at that point the mother was no longer entitled to custody, and the child's custody status became a matter of judicial decree, not abandonment. Following the granting of the guardianship, the mother failed to visit the minor but sent stacks of letters to the minor through the minor's therapist. (Id. at p. 752.) The appellate court noted this did not constitute "parental nonaction" amounting to a leaving. (Ibid.) The appellate court held that, in that particular case, evidence of a failure to communicate or provide support for the statutory period of time could not, in itself, satisfy the separate statutory requirement that the child be " 'left' for a prescribed period of time." (Id. at p. 755.) The court was careful to state: "[A]lthough we do not discount the possibility that, under different circumstances, it might be proper to conclude that a parent has 'left' a child within the meaning of section 7822 despite court intervention, we conclude this is not such a case." (Id. at p. 756.)
Here, the trial court distinguished father's case from Jacklyn F. stating "there has been no judicial decree" and that father was free to see the children if he followed the court's order regarding drug testing, "something he chose to ignore and not do." We find the court made no error distinguishing the case from Jacklyn F. or stating there was "no judicial decree." There was no judicial decree preventing father from seeing his children, as father could have seen his children if he had complied with the court's order. The trial court acknowledged there was a court order disallowing father from visiting his children but found father's voluntary action to continue to use drugs was what prevented him from seeing the children, not the court order. We find Jacklyn F. further distinguishable in that though she did not visit with her children, the mother sent stacks of letters to them. Here, there was no evidence of a similar effort to communicate.
We do not find that Jacklyn F. stands for the proposition "that evidence that a parent has failed to communicate with his or her child for a year or has failed to provide any support for the child during that time can never be circumstantial evidence that the parent left the child and did so with the intent to abandon the child. Otherwise, it would be nearly impossible to prove that a parent who does not communicate with or support his or her child for a year has done what Jacklyn F. characterized as the 'physical act' of leaving the child for the statutory period." (Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 505.) --------
As we have explained, father's voluntary failure to attempt to follow the court order to reestablish visitation in this case is substantial evidence that he voluntarily surrendered his parental role and left the children within the meaning of section 7822 for the statutory period. (See, e.g., Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 506; Amy A., supra, 132 Cal.App.4th at p. 70.) Further, we reject father's arguments the court made any legal error in making its finding.
We next turn to the evidence supporting father's intent to abandon. " ' "[The] question whether [an] 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." ' " (In re E.M., supra, 228 Cal.App.4th at p. 839.)
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., supra, 2 Cal.App.5th at p. 923.) There is no requirement that a parent intends to abandon the child permanently; it is only required the parent intends to abandon the child for the relevant statutory period. (H.D., supra, 35 Cal.App.5th at p. 52.) The Legislature has determined that a child's need for stability cannot be postponed indefinitely to conform to an absent parent's plans to reestablish contact "in the distant future." (In re Daniel M. (1993) 16 Cal.App.4th 878, 884.)
Under section 7822, subdivision (b), a parent's failure to provide identification, support, or communication with his or her child is presumptive evidence of an intent to abandon and his or her token efforts will not overcome this statutory presumption.
Father argues it was not clear whether the trial court applied the section 7822, subdivision (b) presumption, but assuming it did, it erred because he rebutted the presumption.
Here, the trial court found father provided the children with a Christmas present in 2016 and only spoke to the children three times in February and March 2017. The court noted father testified his wages were garnished for child support in November and December 2017 but could not provide any other evidence he supported the children. The court concluded these efforts were "token" and found father had not provided for the children's support or communicated with them for a period of one year. As for whether father intended to abandon the children, the court wrote:
"[Father] argues that he did not inten[d] to abandon his children. He argues that his drug addiction was what prevented him from seeing his children, for which he has no control over and is an illness. [Father] testified that he purchased the methamphetamine, voluntarily used the drug, that this was an independent action by him and he was aware that it would hurt his ability to see his children. [Father] cites no authority to support his argument. [¶] However, the Court points out that even individuals that have a drug addiction can support and communicate[] with their children. They can send them letter[s], gifts, cards, and stay in touch to know what is going on in their lives. There is no evidence that [mother] in any way interfered with [father] in communicating with the children. In fact, he was able to talk to them by phone on three occasions. The evidence shows [father] did not do any of these things or only at a token level. The Court finds [father had the intent to abandon the children.]"Based on the totality of the trial court's reasoning, we conclude it is clear the trial court applied the presumption and found father had not rebutted it. As we explain, the court made no error.
Father argues he rebutted the section 7822, subdivision (b) presumption by providing evidence he supported the children between June 2016 and October 2017 through wage garnishment when he worked at Fresno State. This is not supported by the record and the court was not required to make this inference. Father testified he worked at Fresno State when he lived in Fresno and that there was a wage garnishment but he was not able to specify dates of payment. The record shows that father lived in Fresno for almost two years before moving back to Bakersfield in October 2017, and there is no evidence he worked at Fresno State for that whole period nor that he worked there during the relevant statutory period of July 2016 through October 2017. Father did testify he may have paid child support when he worked at the Dollar Tree in Bakersfield in December 2017, but admitted he could have been mistaken about paying any child support after April 2016, and that he did not remember whether he informed child support services of his employment at the Dollar Tree.
Father also argues he rebutted the presumption by providing evidence that he thought being in contact with the children would violate the court order. This claim is not supported and belied by other evidence on the record. Father testified he thought he could not contact the children's school because of the court order but never said he thought he could not contact them by telephone or write them letters. The fact the record shows father had some telephone contact with his children undermines his claim.
We note the petitioner in an abandonment case only needs to show an intent to abandon for the statutory period and not permanently. Father did not provide any evidence of his state of mind during the period of July 4, 2016, through October 2017, except that he was using drugs. There was for example no evidence father attempted to work on his drug problem in any way even though he knew it was keeping him from seeing his children. He knew his visits were suspended due to his drug use, and he knew it was hurting his ability to see his children. He did not seek treatment until beyond the one-year period. The court was not required to give any weight (and apparently did not) to father's filing of a request for visitation in November 2017 because the one-year period had already elapsed.
The court's findings that the section 7822, subdivision (b) presumption applied, that father did not rebut the presumption, and, accordingly, that he intended to abandon the children for the statutory period is supported by substantial evidence and the court made no legal error in making this finding.
DISPOSITION
The judgment is affirmed.
DE SANTOS, J. WE CONCUR: FRANSON, Acting P.J. PEÑA, J.