Opinion
F061875 Super. Ct. No. 10 CEFL02539
10-17-2011
In re ANTHONY C., a Minor. HEIDI H., Petitioner and Respondent, v. JOHNNY C., Objector and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Objector and Appellant. Heidi H., in pro. per., 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly Nystrom-Geist, Judge.
Marsha F. Levine, under appointment by the Court of Appeal, for Objector and Appellant.
Heidi H., in pro. per., for Petitioner and Respondent.
Appellant Johnny C. (father) appeals from the trial court's order terminating his parental rights pursuant to Family Code section 7822. He argues that there was insufficient evidence that he left his son Anthony C. in the care and custody of the mother, Heidi H.
Subsequent statutory references are to the Family Code unless otherwise noted.
We affirm the court's order.
FACTUAL AND PROCEDURAL HISTORIES
Father and Heidi H. began dating in high school. Heidi became pregnant, and Anthony was born in 1999. At first, Heidi and Anthony lived at home with Heidi's family. When Heidi turned 18, she moved into an apartment with Anthony and asked father to move in with them. Father did move in with them, but within a year, Heidi learned that father had married someone else and his wife was living at father's mother's house. (Father and Heidi were never married.)
Father moved out of the apartment and, soon after, Heidi and Anthony moved back to Heidi's parents' house. After he moved out, father visited Anthony sporadically. There was no visitation schedule; according to Heidi's mother, father "would just call and say, 'I want to come get Anthony,' and sometimes he would show up and sometimes he wouldn't."
When Anthony was around four years old in 2004, Heidi told father that "he needed to be a consistent father or not be a father at all ...." After that discussion, father stopped contact with Heidi and Anthony.
The next time Heidi heard from father was two years later, when he filed a petition to establish a parental relationship. Father filed the petition on June 14, 2006 (when Anthony was six years old), seeking custody and visitation. He was granted supervised visits. Father attended supervised visits from September to December 2006. Before Christmas, Heidi learned that father had canceled his appointment to visit with Anthony and did not schedule another visit.
Heidi did not hear from father again until the next court date—a court-ordered mediation on March 5, 2007. The parents did not reach an agreement at the mediation, and the mediator recommended that Heidi have sole physical custody of Anthony and father have no visitation. The mediator did recommend that father be able to communicate with Anthony in other ways, including mail and gifts. The mediator expressed concern about father's commitment to being involved in Anthony's life. An investigative report quotes the mediator's comments: "'Even after being given the opportunity to repair his relationship with the child, ... [father] is unable to take responsibility or even consider the emotional and psychological devastation that he [elicits] in the child by his repeated absences. He maintains a childlike and immature posture that appears to be ego driven.'" The court adopted the mediator's recommendation on April 23, 2007. Father had no further contact with Heidi or Anthony until 2010.
Father was ordered to pay monthly child support in 2006. As of September 2010, Heidi had received only five voluntary payments from father and was owed approximately $22,424 in past-due child support. Father left gifts for Anthony in December 2006 and dropped off a bag of clothes for Anthony in February or March 2010.
At the end of January 2010, father approached Anthony and his maternal grandmother (Heidi's mother) as they were walking home from school. Father tried to talk to them, and they asked him to leave them alone. In February 2010, Heidi received a call from Anthony's school. Anthony was having a panic attack. The school principal told her Anthony reported that he had seen father's wife on campus and he was scared. Anthony kept saying, "'She's going to take me.'" Also in February, father went to Heidi's parents' house while Heidi and Anthony were there and asked to see Anthony. Heidi told him that Anthony did not want to see him, and if he wanted to see his son, he would have to go to court.
On February 25, 2010, father filed an order to show cause, seeking a modification of the previous court order to allow visitation. On May 3, 2010, Heidi filed a petition to declare Anthony free from parental custody and control of father pursuant to section 7822. Father objected to termination of parental rights, and the court appointed him counsel. Anthony was also appointed counsel. Father's motion requesting visitation was postponed pending the court's decision on Heidi's petition.
A family court mediator prepared an investigative report on June 8, 2010. Anthony reported that, although he had occasional contact with father, he did not consider him to be his father. Heidi reported that father had limited involvement in Anthony's life from the time the boy was about two-and-a-half years old. In 2010, father and his wife began harassing Anthony at school. They followed him, yelled at him, and took photographs of him without his consent. As a result, Anthony began to have behavior problems and his grades dropped. Anthony transferred schools and his emotional welfare improved. Heidi married Raymond H. in 2009, and Anthony wanted his stepfather to adopt him in order to protect him from father's recent intrusiveness. The mediator recommended the court find that termination of father's parental rights was in the best interest of the child.
Heidi filed an amended petition on July 1, 2010. (Heidi has represented herself throughout this proceeding, including on appeal.) She alleged that father left Anthony in her custody beginning in 2002. She further alleged that father offered less-than-token effort to support Anthony or communicate with him. Heidi sought to have her husband Raymond adopt Anthony.
A second investigative report was prepared on July 9, 2010. Father admitted that he had limited contact with Anthony and had not supported him financially in accordance with the court order. The mediator wrote, "[F]ather indicates that he was unaware that he could file for modification of custody if he was not paying the court ordered child support. The father's reason is suspect since he had previously filed for a custody modification through Family Law." The mediator again recommended that termination of father's parental rights was in Anthony's best interest.
The court interviewed Anthony on July 14, 2010. He was 10 years old at the time. Anthony said he thought of Raymond as his dad. He told the court that he felt good about father's parental rights being taken away "[b]ecause I don't have to see him any more and he really won't be my dad any more."
A trial on the petition to declare Anthony free from parental custody and control of father began on September 1, 2010. The court heard three days of testimony over the course of three months. Anthony's maternal grandmother, Heidi's husband, Raymond, and Heidi testified in support of the petition. Raymond testified that he had known Anthony for five years and lived with him for three years. He had never seen father visit Anthony, call him, or send him letters or cards.
Father, his mother, and his wife, Brandy C., testified in opposition to the petition. Father testified that he never intended to abandon Anthony and always wanted to continue a relationship with him. Father recalled that, in about 2005, he went to Heidi's apartment and she told him that he was not allowed to see Anthony. Then Heidi moved, and father did not know where to find her. Father testified that he and his mother went to Heidi's parents' house several times, trying to contact Heidi to convince her to let him visit Anthony. Father explained that, in 2006, he filed a petition seeking visitation because he did not know how to contact Heidi. His petition resulted in a court order for supervised visitation. Father testified that there was a cost of $35 or $40 per hour for supervised visitation and he could not afford to pay for visitation.
Father's mother testified, among other things, that in 2005 she went to Heidi's parents' house with father and Heidi's father yelled and raised his hand to hit father. Brandy testified that she went with father to Heidi's parents' house 15 to 20 times trying to see Anthony.
Counsel for Anthony joined Heidi's request to terminate father's parental rights. Counsel argued that, since his last visitation with Anthony in December 2006, father made no effort to contact his son for four years. She argued that father's "inaction in the face of a judicial order allowing visitations provides substantial evidence that he abandoned Anthony in [Heidi's] care."
On December 23, 2010, the court found that father had abandoned Anthony and ordered his parental rights terminated. The court found Heidi, Raymond, and Heidi's mother completely believable. On the other hand, the court found father's mother to be confused or disoriented and her testimony to be unreliable. Brandy was found to be "completely and utterly without credibility." The court found that father lacked credibility except in one of his answers. The court explained that father never gave a straight answer, and "it was as though I could see the answers being constructed out of whole cloth." The court did not believe that father had made efforts to see Anthony or to support him.
According to the court, the only answer that father gave that was entirely believable was his response to a question about his other children. Father has three younger children in addition to Anthony. To the question, "do you provide emotional support for those other children," father responded, "Of course." The court believed this answer completely, explaining, "It was given in a different tone with a different demeanor than the remainder of [his] information."
The court found that it was clear, by his actions and inactions, that father abandoned Anthony. It observed that, after he was given supervised visitation in 2006, father "stopped participating in the court process," and he "had so abandoned Anthony and so failed to exercise his parental rights under an order where he was allowed contact, that the next court order was there would be no contact."
The court stated that father did not go to court-ordered mediation after he stopped going to supervised visits. This is understandable since father himself testified that he did not believe he attended mediation in 2007. In his opening appeal brief, father states that he failed to appear at mediation. To her credit, Heidi points out that father did, in fact, attend mediation on March 5, 2007. Despite father's attendance, the mediator recommended that father have no visitation, and the court adopted the recommendation on April 23, 2007.
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The court also found that father made only token efforts to communicate with or support Anthony and concluded that it was in Anthony's best interest that father's parental rights be terminated.
On February 14, 2011, father appealed the court's decision.
DISCUSSION
Section 7822 allows the court to declare a child free from parental custody and control where "[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).)
"Thus, a section 7822 proceeding is appropriate where 'three main elements' are met: '(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]."' [Citation.]" (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.)
"In determining the threshold issue of whether a parent has 'left' his or her child, the focus of the law is 'on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent.' [Citations.] [¶] Thus, ... 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 [citation]; however, the parent's later voluntary inaction may constitute a leaving with intent to abandon the child [citation]." (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504.)
Although a trial court must make its findings under section 7822 based on clear and convincing evidence, the appellate court applies a substantial evidence standard of review to a trial court's findings. Our review is limited to whether substantial evidence exists to support the conclusions reached by the trial court in applying the appropriate standard. (In re Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1010-1011; In re Amy A. (2005) 132 Cal.App.4th 63, 67.) We resolve all conflicts in the evidence in favor of the respondent, and all legitimate and reasonable inferences must be indulged in to uphold the judgment. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
On appeal, father acknowledges that he did not have contact with Anthony for more than three years between December 2006 and May 2010. He also recognizes that the court did not believe his testimony that he never intended to abandon Anthony. Therefore, he does not dispute that the second and third elements required under section 7822 have been met.
Father's appeal relates only to the first element. He contends the evidence was insufficient to show that he left Anthony in Heidi's care and custody. Father argues that his conduct between December 2006 (when he stopped attending supervised visitation) and April 2007 (when the court issued the no-visitation order) was only four months, not the year required under section 7822, subdivision (a)(3), and his actions and inaction between April 2007 and May 2010 did not constitute substantial evidence that he left Anthony in Heidi's custody. Father asserts that he did not know how to contact Heidi directly, but he continued to try to arrange visits by going to Heidi's parents' house. He points out that he made a few child support payments and left at least one gift for Anthony. He did not seek modification of the no-visitation order, but he claims that he was under the belief that he could not do so.
Most of father's assertions, however, lack evidentiary support. The only evidence that father did not know how to contact Heidi was his own testimony, which the court did not believe. The court specifically rejected father's claim that he made multiple trips to Heidi's parents' house in an effort to see Anthony. There was no testimony that father thought he was barred from seeking modification of the court's no-visitation order because he owed child support. In fact, despite failing to make any child support payments for years, on February 25, 2010, father did file an order to show cause seeking visitation. At trial, father offered no explanation for waiting years before seeking a visitation order from the court.
According to the credible evidence, father made one child support payment in January 2007 and nothing more until January 2010, when he made a partial payment. The "gift" father refers to was a bag of clothes, which was dropped off at Heidi's parents' house in February or March 2010.
In finding that father left Anthony, the trial court relied on In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th 491. In that case, the parents separated in 2000 and the father last saw his children in 2001. (Id. at pp. 494, 497.) In 2008, the mother filed a petition to terminate the father's parental rights, which was granted. (Id. at pp. 497, 500.) The father argued that there was insufficient evidence that he "left" his children because he was deprived of custody by judicial decree. (Id. at p. 503.) The appellate court rejected the father's argument. The court identified instances of the father's inaction since his last contact with his children: He stopped seeking to schedule visits with them; he left them in the care and custody of their mother for six months before the final custody and visitation orders were entered; the court mediator could not find him because he failed to notify the court or mediator of his new address; he failed to attend the dissolution proceedings or oppose relief sought by the mother; he made no attempt to appeal the judgment and did not seek modification of the order for over three years; he made no effort to comply with the conditions that would have allowed him to have contact with his children; he did not provide for their support in any way; he did not seek any type of parental relationship with them; and he did not pay child support voluntarily. (Id. at p. 505.) The father's inaction was substantial evidence that he voluntarily surrendered his parental role and "left" his children within the meaning of section 7822.
We recognize that, in the present case, father did not move without notifying the court and he did seek modification of the no-visitation order (although not until three years after his last supervised visit). In other respects, however, father's inaction was similar to the father's in In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th 491. After he attended the mediation in March 2007, father did nothing to continue his relationship with Anthony for almost three years. During this time, father did not appeal the no-visitation order or seek modification; he did not pay court-ordered child support or provide for Anthony in any way; and he did not communicate with Anthony through cards or letters, although he was allowed to do so under the April 23, 2007, court order. This inaction is substantial evidence that father left Anthony in the care and custody of Heidi within the meaning of section 7822. (See In re Marriage of Jill & Victor D., supra, at pp. 505-506; In re Amy A., supra, 132 Cal.App.4th at p. 70.)
Father claims his case is analogous to In re Jacklyn F. (2003) 114 Cal.App.4th 747. In Jacklyn F., the mother left her child with the paternal grandparents, who petitioned for guardianship after the mother had been gone for three days. The mother unsuccessfully contested the petition. (Id. at pp. 749-750.) Nearly four years later, the mother sought supervised visitation. (Id. at pp. 750-751.) According to the mother, she did not seek visitation earlier because she had relapsed into drug use and had only been in a condition to see the child for the previous year. (Id. at p. 752.) The grandparents opposed the request and subsequently filed a petition to terminate the mother's parental rights. (Id. at p. 751.) The trial court granted the petition, but the appellate court reversed, finding insufficient evidence that the mother left her child. (Id. at pp. 753, 757.) The appellate court explained, "[the mother's] conduct following the granting of the guardianship—which included sending 'stacks' of letters to the minor but failing to visit her—did not constitute 'parental nonaction' amounting to a leaving." (Id. at p. 756.)
Father argues that his efforts at paying his support obligation, leaving a gift for Anthony, and attempting contact through the maternal grandparents are akin to the mother's effort of sending stacks of letters in In re Jacklyn F. We disagree. As we have noted, the trial court did not believe father's testimony that he tried to contact Anthony through the maternal grandparents. The child support payment and gift occurred in 2010, after almost three years of nonaction. In re Jacklyn F. is also distinguishable because the mother in that case had been in no condition to see her child for years due to drug use. In contrast, the trial court in this case recognized that father "knows how to be a father" as demonstrated by his relationship with his other three children; he simply "chose not to parent Anthony in the same way."
In sum, substantial evidence supports the trial court's finding that father "left" Anthony within the meaning of section 7822.
DISPOSTION
The trial court order is affirmed.