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Eric W. v. Charles C. (In re C.C.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 4, 2012
D059771 (Cal. Ct. App. Jan. 4, 2012)

Opinion

D059771

01-04-2012

In re C.C. et al., Minors. Eric W., Petitioner and Respondent, v. Charles C., Objector and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. A57362)

APPEAL from a judgment of the Superior Court of San Diego County, Honorable Cynthia Bashant, Judge. Affirmed.

Charles C. appeals a judgment terminating his parental rights to his children, M.C. and C.C. (together, the children), on the basis of abandonment under Family Code section 7822, subdivisions (a)(3) and (b). Charles contends the evidence was insufficient to establish that he intended to abandon the children. We affirm the judgment.

Further statutory references are to the Family Code, unless otherwise noted.

FACTUAL AND PROCEDURAL HISTORY

Charles and Misty (together, the parents) met in 2000, and married in Pennsylvania after M.C.'s birth in April 2001. Financial difficulties strained the marriage, and the parent's relationship deteriorated when Misty became pregnant with C.C. The parents separated, and in June 2005 Misty was awarded primary custody of the children. Charles began paying $500 each month to Misty for child support and participated in regular visitation with the children.

The record contains a discrepancy regarding M.C.'s date of birth, but the majority of the references state it as being April 25, 2001.

Misty met Eric W. following the parents' separation, and married him several months after her divorce from Charles. Eric began to contribute to the financial support of the children in August 2006. In June 2007, the Court of Common Pleas, Cumberland County, Pennsylvania, granted Misty permission to move with the children to San Diego, where Eric was stationed in the military.

In December 2010, Eric filed a Petition for Freedom From Parental Custody and Control, seeking to free the children from Charles's custody and control on the ground Charles had not communicated with the children for a period of one year. The petition was filed as a companion to Eric's petition for stepparent adoption of the children. The San Diego County Health and Human Services Agency (Agency) recommended the court grant Eric's petition because Charles had not communicated with the children since April 2008, it was in the children's best interests to grant the petition, and the children wished to be adopted by Eric.

At the April 2011 hearing on Eric's petition, Charles focused on the June 2007 Pennsylvania court order permitting the children to move to California, which required Misty to provide weekly Internet video conferencing between Charles and the children. The video conferencing never occurred because the parents disagreed about the type of video conferencing required by the order. Charles insisted it was necessary for Misty to pay for his Internet upgrade, whereas Misty offered to use a less costly alternative. Charles also claimed Misty had denied him visitation with the children, did not contact him for months after their move to California, provided excuses as to why the children could not speak to him on the telephone, and withheld from him the children's address. However, Charles claimed due to his limited resources he did not attempt to seek recourse from the Pennsylvania court to resolve the parents' conflicts until late 2010.

Charles testified he could not have video conferences with the children because the graphics processor in his computer did not work and he had no compatible webcam. According to Misty, Charles had a compatible webcam.

According to Misty, Charles knew the children's address, which had not changed since their relocation to San Diego. Charles admitted he always had known Misty's cellular telephone number, and that he was familiar with Misty's family, who live near him in Pennsylvania. Charles had telephoned the children every few weeks after their move, but had not spoken by telephone with the children since April 2008. Charles claimed he sent cards and gifts to the children in late 2008 or 2009. It was undisputed that Charles's last in-person contact with the children was before their move to California in July 2007. Although the Pennsylvania court had granted Charles custody of the children during the summer and certain holidays, Charles had refused to take custody of the children during the summer of 2007.

M.C., who was close to 10 years old by the time of the trial, testified he loved and wanted to be adopted by his "dad" Eric. M.C. remembered Charles, but believed the last time he saw Charles was in 2005 or 2006. The trial court observed M.C. was "obviously very attached" to Eric, and during the hearing M.C. "threw himself into [Eric's] arms for comfort." C.C. who was almost seven years old, did not testify, but the Agency reported that she also referred to Eric as "daddy," and had no memory of Charles.

The trial court noted that from 2007 through 2010 Charles did nothing to resolve his alleged inability to communicate with the children. The court interpreted Charles's excuse that he needed upgraded Internet access to communicate with the children as, in effect, him declaring "because you didn't buy the [I]nternet access I want I did not communicate with the children." The trial court found Charles had made only token attempts to contact the children, and found credible Misty's testimony that Charles refused custody of the children in the summer of 2007. The court questioned whether Charles would recognize the children today if he were to see them on the street. The court found by clear and convincing evidence that Charles had abandoned the children, it was in the children's best interests to grant Eric's petition, and declared the children free from Charles's custody and control under section 7822, subdivision (a)(3).

The children's attorney agrees it was in the children's best interests to grant Eric's petition and terminate Charles's parental rights.

DISCUSSION

Charles contends there is no substantial evidence to support the trial court's finding that he intended to abandon the children, because he continuously paid child support. Under section 7822, subdivision (a)(3), a proceeding to have a minor child declared free from the custody and control of a parent may be brought 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." Whether a parent intentionally abandoned a child within the meaning of section 7822, is a question of fact for the trial court. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.) On appeal, "[w]e apply the substantial evidence standard of review [citation]; in applying this standard, we do not pass on the credibility of witnesses, resolve conflicts in the evidence, or determine the weight of the evidence. [Citation.] We simply determine whether there is substantial evidence, believed by the trial court, that supports the court's findings. [Citation.] " (In re Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 503.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (Adoption of Allison C., at p. 1011.)

Section 7822 continues without substantive change the provisions of former Civil Code section 232, subdivision (a)(1), and prior to that, Welfare and Institutions Code section 701. (In re Amy A. (2005) 132 Cal.App.4th 63, fn. 4.) Some case law cited in our opinion was decided under these predecessor sections.

Before a child can be declared free from the custody and control of a parent under section 7822, subdivision (a)(3), three elements must be shown: "(1) the child must have been left with another; (2) without provision for support or without communication from . . . his parent[ ] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done 'with the intent on the part of such parent . . . to abandon [the child].' " (In re Cattalini (1946) 72 Cal.App.2d 662, 665.)

A parent has "left" a child within the meaning of section 7822, when the parent has voluntarily surrendered the child to another person's care and custody. (In re Amy A., supra, 132 Cal.App.4th at p. 70.) A court order denying custody to one parent does not preclude a finding the noncustodial parent "left" the child. (Ibid.) Here, the evidence shows Charles "left" the children with Misty because he voluntarily lost contact with the children. Following the parent's divorce, Charles exercised his court-ordered visitation rights only until the children moved to California in 2007. Charles ceased all communication with the children in late 2008 or early 2009, and allowed nearly two years to pass before attempting to seek recourse from the Pennsylvania court. Although Charles claims his limited resources precluded him from hiring an attorney before that time, lack of resources did not excuse Charles's failure to communicate with the children by telephoning them or sending cards, letters or gifts. (In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 505 [father's inaction was substantial evidence he "left" children within meaning of section 7822]; In re Amy A., supra, 132 Cal.App.4th at p. 69 [focus is on voluntary nature of abandonment of parental role rather than physical desertion by parent].)

Substantial evidence also supports the court's finding Charles intended to abandon the children during the one-year statutory period before the petition was filed. (See In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) Intent to abandon, the third element of section 7822, subdivision (a)(3), does not require the parent intend to abandon the child permanently; "[r]ather, an intent to abandon for the statutory period is sufficient." (In re Daniel M., at p. 885.) Intent to abandon is a factual question that may be resolved by objectively measuring the parent's conduct, rather than the parent's subjective claims. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) The court considers the frequency of the times the parent tried to communicate with the child, the genuineness of the effort under all the circumstances and the quality of the communications that occurred. (Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)

Charles argues he did not intend to abandon the children because he provided continuous financial support, and section 3402, subdivision (a), defines abandoned as having been "left without provision for reasonable and necessary care or supervision." However, section 3402 is expressly applicable only to Division 8, Part 3, of the Family Code, which provides for the assertion of emergency jurisdiction over a child in "exigent circumstances." (In re Jorge G. (2008) 164 Cal.App.4th 125, 132.) Division 8, Part 3, which encompasses section 3400 through 3465, is known as the Uniform Child Custody Jurisdiction and Enforcement Act. Section 7822 is in Family Code, Division 12, Part 4, which addresses "Freedom From Parental Custody and Control." Furthermore, section 7822, subdivision (a) provides its own "precise and technical definition of an 'abandoned child' . . . . Thus, the term 'abandoned' is not used in its ordinary sense in child custody determinations, but rather refers to distinctive acts or omissions by a parent." (People v. Ryan, supra, 76 Cal.App.4th at pp. 1315, 1319.)

Section 7822, subdivision (b) creates a presumption of an intent to abandon a child when the parent either fails to support or fails to communicate with a child for more than one year. (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 930-933; see also Piscioneri v. City of Ontario (2002) 95 Cal.App.4th 1037, 1044 [use of the word "or" in a statute indicates intention to use it disjunctively so as to designate alternative or separate categories].) "[T]he failure to communicate for the requisite statutory period of time is adequate ground under the statute to adjudicate an abandonment by the non-communicating parent." (Adoption of Oukes (1971) 14 Cal.App.3d 459, 467.)

In his reply brief Charles concedes his failure to contact the children for over one year established a presumption that he intended to abandon them, but argues his continuous provision of financial support rebutted that presumption. Whether the statutory presumption of intent to abandon was overcome by Charles's continuous payment of support is a question of fact for resolution by the trial court. (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at p. 506.) In order to overcome the statutory presumption, the parent must have made more than token efforts to communicate with or support the child. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1010; In re B.J.B., supra, 185 Cal.App.3d at p. 1212; Adoption of Oukes, supra, 14 Cal.App.3d at p. 466.)

The cases cited by Charles are inapposite because they do not address the parent's continuous provision of financial support together with the parent's failure to communicate with the child for the statutory period. (In re Amy A, supra, 132 Cal.App.4th at p. 70 [father voluntarily "left" child despite order granting sole custody to mother]; In re Daniel M., supra, 16 Cal.App.4th at pp. 880-881, 884 [discussed parent's failure to communicate as a basis for abandonment, without any discussion of parent's provision of financial support]; Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1011, 1013-1014 [addressed parent's failure to support in absence of a demand, in addition to his failure to communicate].)

Even if Charles's continuous provision of support, by itself, rebutted the statutory presumption, the evidence is sufficient to support the trial court's finding Charles intended to abandon the children. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) The parental role includes the provision of "physical care, nourishment, comfort, affection and stimulation . . ." and involves "companionship and shared experiences." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; People v. Ryan, supra, 76 Cal.App.4th at pp. 1316 -1317.) Aside from financial support, Charles completely abdicated his role as the children's father. In fact, the trial court rightfully questioned whether Charles would recognize the children if he saw them on the street. When Eric filed his petition, Charles had not seen the children for over three years and had not contacted the children for nearly two years. There also was evidence that Charles showed renewed interest in the children only after being notified of Eric's desire to adopt them. Although Charles claimed Misty precluded him from contacting the children, the trial court was not required to believe Charles's testimony. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) Furthermore, for over three years Charles did not attempt to enforce his rights under the Pennsylvania court's custody order. "[T]he reality is that parents sincerely interested in maintaining contact, whether by telephone, card or personal visit, with their children, or with the persons responsible for their care, will do so under ordinary circumstances in any [one-year] period." (In re Rose G. (1976) 57 Cal.App.3d 406, 420.) An objective assessment of Charles's conduct, as opposed to his arguments to the contrary, provides substantial evidence supporting the conclusion he intended to abandon the children.

In October 2010 Misty asked Charles to consent to Eric's adoption of the children. Charles first contacted an attorney in November 2010, allegedly to help him locate the children.
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Finally, when considering whether to terminate a parent's rights, the court must liberally construe section 7822 to "serve and protect the interests and welfare of the child." (§§ 7800, 7801.) The court also "should consider the wishes of the child." (In re B.J.B., supra, 185 Cal.App.3d at p. 1208.) The evidence showed the children do not wish to see Charles, want to be adopted by Eric, and already consider Eric their father. Charles introduced no contrary evidence. Substantial evidence supports the court's finding it was in the children's best interests to terminate Charles's parental rights.

DISPOSITION

The judgment is affirmed.

___________________________

BENKE, J.
WE CONCUR:

___________________________

McCONNELL, P. J.

___________________________

HUFFMAN, J.


Summaries of

Eric W. v. Charles C. (In re C.C.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jan 4, 2012
D059771 (Cal. Ct. App. Jan. 4, 2012)
Case details for

Eric W. v. Charles C. (In re C.C.)

Case Details

Full title:In re C.C. et al., Minors. Eric W., Petitioner and Respondent, v. Charles…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jan 4, 2012

Citations

D059771 (Cal. Ct. App. Jan. 4, 2012)