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In re Adoption of J.G., 2d Juv No. B210723 (Cal. App. 4/30/2009)

Court of Appeal of California
Apr 30, 2009
No. B210723 (Cal. Ct. App. Apr. 30, 2009)

Opinion

No. B210723

4-30-2009

Adoption of J.G., a Minor. M.M. et al., Plaintiffs and Appellants, v. D.G., Defendant and Respondent.

Janie H. Beach; John L. Dodd & Associates, John L. Dodd for Plaintiffs and Appellants. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Respondent.

Not to be Published in the Official Reports


Guardians appeal an order of the trial court denying their petition to free a child from the custody and control of his biological parents. (Fam. Code, § 7822.) We affirm.

All further statutory references are to the Family Code.

FACTS AND PROCEDURAL HISTORY

On June 2, 2006, D.G. ("Mother") gave birth to a son, J. At the time, Mother and J.s father ("Father") lived with the newborns paternal grandmother. Mother and Father pursued a drug lifestyle and were unable to care for J. Within three weeks of his birth, they executed notarized documents giving "temporary legal custody" of J. to his grandmother. The documents authorized her to "make any decisions regarding financial, medical, and emotional support" for J.

Shortly after obtaining custody of J., the grandmother gave custody of J. to her daughter and son-in-law, the Ms. Mother did not know the M. family and was unaware that they now had custody of J.

On July 10, 2006, the M.s petitioned for guardianship of J. At the guardianship hearing, Mother appeared and requested visitation with J. All parties appeared in propria persona. The probate court directed the parties to arrange an informal visitation schedule, and on September 5, 2006, it granted the guardianship petition. Thereafter, Mother arranged visits with J. through his grandmother because she provided his childcare.

We hereafter refer to the M.s as "the guardians" except where clarity demands otherwise.

On August 10, 2007, the guardians filed a petition to adopt J. In response, Mother sought a formal visitation order in the guardianship proceeding. Mother was then participating in a residential drug treatment program. The probate court ordered visitation with J. every other Saturday for two and one-half hours, based upon the parties agreement.

On April 8, 2008, the guardians filed a petition to terminate Mother and Fathers parental rights, pursuant to section 7822. They alleged that Mother and Father abandoned J. because they had not paid financial support and had engaged in only "token communication."

At a hearing regarding the adoption petition, the trial court appointed counsel for Mother. Father did not appear nor did he respond to the petition. At a contested hearing, the guardians presented evidence that Mother did not offer or pay financial support for J. They also presented written evidence of the number of and duration of Mothers visits with J. Prior to the formal visitation order, Mother visited usually once or twice monthly, and called J.s grandmother several times monthly. Following the 2007 visitation order, she visited consistently, although not for the full amount of time.

Mother testified that she had been addicted to methamphetamine, but was now rehabilitated. She recently obtained employment and soon would graduate from the residential treatment program. Mother opposed the adoption and stated that she believed that she gave J.s grandmother only temporary custody. She also conceded that she provided little financial support to J.; she purchased diapers for him several times and once gave his grandmother a $100 gift card.

The trial court also received evidence of a report prepared by the Ventura County Human Services Agency. The report set forth Mother and Fathers criminal histories, including theft and drug crimes. It also stated that Mother did not have custody of her other four children. The report recommended that the court terminate parental rights and free J. for adoption.

The trial court concluded that "the evidence is not clear and convincing that mother `left her child with the intent to abandon him." The court relied upon evidence of Mothers visitation with J. and her objections to the guardianship and adoption. The court acknowledged that the contact "was not extensive," but decided that it was "not so inconsequential as to be `token."

The trial court also concluded that Father had abandoned J., relying upon evidence that he had not appeared in the guardianship or adoption hearings, had not visited J. for eight months, and had not sought court-ordered visitation. The court reasoned, however, that it would serve no purpose to declare J. free from Fathers custody because of Mothers favorable ruling.

The guardians appeal and contend that the trial court erred by not terminating parental rights.

DISCUSSION

I.

The guardians argue that the trial court erred by not terminating Fathers parental rights because they established the elements of abandonment, as set forth in section 7822: "(a) A proceeding under this part may be brought if any of the following occur: [¶]. . . [¶] (2) The child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the childs 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 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. In the event that a guardian has been appointed for the child, the court may still declare the child abandoned if the parent or parents have failed to communicate with or support the child within the meaning of this section."

The guardians point out that the trial court concluded that the evidence established that Father abandoned J. They add that the refusal to terminate Fathers parental rights will necessitate future litigation, additional expenditures, and consumption of judicial resources. The guardians also assert that the trial court acted improperly by stating that the denial of the petition regarding Father was "without prejudice," because section 7894, subdivision (b) provides that the court may not "change" or "modify" the order.

The purpose of terminating parental rights is to free the minor child for adoption. California Rules of Court, rule 5.725(h) provides: "The purpose of termination of parental rights is to free the dependent child for adoption. Therefore, the court must not terminate the rights of only one parent unless that parent is the only surviving parent, or the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state, or the other parent has relinquished custody of the child to the county welfare department. The rights of the mother, any presumed father, any alleged father, and any unknown father or fathers must be terminated in order to free the child for adoption." Although this rule applies in dependency proceedings, its reasoning is applicable to termination of parental rights pursuant to section 7800 et seq. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 110 [as long as one parents rights are not terminated, no advantage to child to terminate the other parents rights].)

Moreover, section 7894 does not preclude the trial court from terminating parental rights in the future. Subdivision (b) of that section pertains to the courts power to set aside, change, or modify an order that declares a child free from custody and control. The trial court denied the petition here.

II.

The guardians contend that the trial court misinterpreted the "leaving" requirement of section 7822 ["A proceeding under this part may be brought if . . .: [¶] (2) The child has been left by both parents . . . in the care and custody of another person for a period of six months . . . ."]. They add that In re Jacklyn F. (2003) 114 Cal.App.4th 747, upon which the trial court relied, is decided incorrectly. The guardians also claim that Jacklyn F. mistakenly analyzes judicial precedent. They urge an expansive meaning of "left" as used in section 7822. In sum, they assert that parental inaction in the face of a guardianship order or custody award satisfies the "leaving" requirement of the statute. (In re Amy A. (2005) 132 Cal.App.4th 63, 70 [Fathers "repeated inaction in the face of the custody order provides substantial evidence that he voluntarily surrendered his parental role and thus `left [his child] within the meaning of section 7822"].)

In re Jacklyn F., supra, 114 Cal.App.4th 747, involved maternal grandparents who filed a petition for guardianship after their grandchild had been left in their custody for three days. The childs mother contested the guardianship and sought return of her child. The probate court granted the guardianship. Nearly four years later, the grandparents filed a petition to terminate the parental rights of their daughter. The trial court granted the petition. The reviewing court reversed the order, concluding that insufficient evidence existed that the mother left the child for the statutory period of six months because once the guardianship was established, she was no longer entitled to custody without further court order. (Id. at p. 756.) "Once the guardianship was granted, [the mother] was no longer legally entitled to custody of the minor without further court order. At such point, the minors custody status became a matter of judicial decree, not abandonment." (Ibid.)

The trial court did not misinterpret the "leaving" requirement of section 7822. Mother gave J.s grandmother temporary custody until she "got better" and could care for him. She did not leave J. with the guardians and did not know that they had custody until they petitioned for guardianship. At the guardianship hearing, Mother stated: "Im not trying to give full guardianship. If anything, I want temporary guardianship because she is caring for my son and just until I can get on my feet financially." Nevertheless, the trial court granted a permanent guardianship. Mothers leaving thus became an involuntary leaving. (In re Jacklyn F., supra, 114 Cal. App.4th 747, 755.)

III.

The guardians argue that the trial court erred by looking to the two-year period following Mothers placing J. with the grandmother in determining intent to abandon. They assert that Mother did not rebut the presumption of abandonment for the initial six-month or one-year period. The guardians point out that she provided no support and only token communication.

In reviewing the sufficiency of evidence to support the decision of the trial court, we view the evidence and draw all reasonable inferences therefrom in favor of the order or judgment. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence, determine the credibility of witnesses, or substitute our decision for that of the trier of fact. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.) In our review, we are mindful that the trial courts findings must have been made by clear and convincing evidence. (In re Amy A., supra, 132 Cal.App.4th 63, 67 [section 7822 proceeding requires findings established by clear and convincing evidence].)

In essence, the guardians are requesting that we reweigh the evidence, redetermine witness credibility, and arrive at a different conclusion. The trial court received evidence and heard testimony from one of the guardians and Mother. It found that Mother maintained visits with J. informally until she obtained a formal visitation order, and that she objected to the guardianship. This contact, the court found, was more than token. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 [in determining intent to abandon, trial court may consider not only the number and frequency of communications, but "the genuineness of the effort under all the circumstances . . . as well as the quality of the communication . . . ."].) Moreover, even if the contact was token, section 7822, subdivision (b) does not require the court to determine abandonment as a matter of law. (Ibid. ["If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned . . . ."].) Unlike In re Amy A., supra, 132 Cal.App.4th 63, 70, Mother did not do "[her] best to ignore [J.] and [her] parental role."

IV.

The guardians contend that the trial court erred by ruling that they had the burden of proof regarding abandonment, rather than the burden of producing evidence.

We do not so read the record. The trial court discussed section 7822, judicial precedent, and decided that Mothers contact with J. was more than token. The court impliedly found, with sufficient evidentiary support, that Mother rebutted the presumption of abandonment flowing from lack of support or token contact. We presume that the trial court understood and applied the proper standard of producing evidence and burden of proof. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)

V.

The circumstances here are those "the juvenile dependency laws are particularly well suited to address." (In re Jacklyn F., supra, 114 Cal.App.4th 747, 756.) Dependency proceedings would have allowed Mother only a limited time "to get her act together." (Ibid.) If she were unsuccessful, the minor would be entitled to a permanent plan of adoption absent compelling circumstances. (Ibid.)

The order is affirmed.

We concur:

YEGAN, J.

PERREN, J.


Summaries of

In re Adoption of J.G., 2d Juv No. B210723 (Cal. App. 4/30/2009)

Court of Appeal of California
Apr 30, 2009
No. B210723 (Cal. Ct. App. Apr. 30, 2009)
Case details for

In re Adoption of J.G., 2d Juv No. B210723 (Cal. App. 4/30/2009)

Case Details

Full title:Adoption of J.G., a Minor. M.M. et al., Plaintiffs and Appellants, v…

Court:Court of Appeal of California

Date published: Apr 30, 2009

Citations

No. B210723 (Cal. Ct. App. Apr. 30, 2009)