Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County, Super. Ct. No. BA001574. Nancy C. Staggs, Commissioner.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Tritt & Tritt and James F. Tritt for Plaintiff and Respondent.
OPINION
Kane, J.
Four-year-old B. was placed in the guardianship of Claudia D., his paternal aunt (Aunt). Three years later, Aunt petitioned the court to declare B. free from the custody and control of his parents, Nina W. (Mother), and Dale D. (Father), so Aunt could adopt him. The court found Mother and Father had abandoned B. within the meaning of Family Code section 7822 and the court granted Aunt’s petition. Mother appeals. We will affirm.
All statutory references are to the Family Code unless otherwise noted.
PROCEDURAL AND FACTUAL SUMMARY
Court Investigator’s November 27, 2006 Report
Mother and Father met in 1996. They never married, but they stayed together four years and had one child, B. Father ended the relationship with Mother because of her “drug use, scandalous friends, theft and domestic violence.” Father was convicted of domestic violence against Mother and he was incarcerated after he violated probation. Meanwhile, on October 3, 2003, Mother was arrested for child endangerment and four-year-old B. was taken into protective custody. Father was released from prison the next day but was unable to care for B. On October 7, 2003, B. was placed with Aunt with the understanding that she would petition the court for guardianship. In November 2003, the court granted Aunt guardianship of B. Father agreed with the guardianship because he was unable to provide for B. and needed to get back on his feet before he could take custody of B. Aunt provided proper care and served as a responsible parent figure for B.
The report also stated they met in 1987, but that date conflicts with all other dates in evidence.
Soon after Aunt gained guardianship, Father started a relationship with Cheryl and they had two children together. When Father and Cheryl started living together, Father’s contacts with B. became less frequent because Aunt refused to allow Father to visit B. when Cheryl was present because Cheryl abused drugs. After Father and Cheryl had their first child, Cheryl went through rehabilitation, but after their second child was born, Cheryl started using drugs again and was incarcerated on drug-related charges (she was incarcerated at the time of the investigator’s report in November 2006).
After Aunt gained guardianship in November 2003, neither Mother nor Father provided any support for B. According to the court investigator, Mother had no “significant” communication with B. and Father had no “meaningful” communication with B.
On September 1, 2006, Aunt petitioned the court to declare B. free from parental custody and control so she could adopt him. Aunt’s goal was “to insure that neither of [B.’s] parents have a[n] opportunity to gain custody and put [B.] in unfavorable and dangerous circumstances ….”
Father appreciated Aunt’s good care of B. during the preceding three years and recognized that Aunt could provide for B.’s financial needs more adequately than he could. However, he feared that if he agreed to surrender his parental rights, B. would feel rejected. Father had a relationship with B. and wanted to be an active figure in his life. Aunt assured Father she would never keep him from B., but Father felt surrendering his parental rights was a drastic act he was not willing to do at that time. He therefore pursued mediation to obtain visitation with B., which the court ordered on October 30, 2006. Father hoped that sometime in the future he could request termination of the guardianship and have B. live with him.
According to B., who was in second grade, he had lived with Aunt for a long time and she acted as his mother. He felt safe and secure with her and he called her “mom.” He could not clearly remember living with Mother. When B. visited the home of his paternal grandmother (Grandmother), he would see Father. B. had a positive relationship with Father. B. understood that Aunt was attempting to become his official mother and he felt good about that, but he had a hard time understanding that Father would no longer be his father.
The court investigator recommended, and believed it to be in B.’s best interest, that B. not be declared free of Father’s custody and control. The investigator based his conclusion on the following findings. Aunt had been an effective and responsible guardian for B. for three years. Mother had been an utterly irresponsible parent and deserved to have her parental rights terminated. Although Father had not been a responsible parent either, he maintained contact with B. and had a meaningful relationship with him. Father’s interest in B. was demonstrated by his mediation with Aunt to establish regular visitation with B. It was clear to the investigator that Father had demonstrated an interest in maintaining a parental relationship and that B. enjoyed visiting with Father. The investigator found it difficult to correlate Father’s court-ordered visitation with termination of his parental rights. The investigator believed it was definitely in B.’s best interest for the guardianship to continue until Father could become a more responsible and involved parent. At the time, Father seemed to be more interested in his girlfriend and their two children than he was in B. When asked, Father did not know the name of B.’s teacher. Father had full confidence that Aunt was providing good parental care for B., but Father was not willing to surrender all parental rights and risk having no contact with him.
Hearing on the Petition
On June 1, 2007, the court held a hearing on Aunt’s petition to declare B. free from Mother and Father’s custody and control. The following testimony was elicited.
Aunt
Aunt testified she took custody of B. on October 7, 2003, after Mother was arrested. Mother contested Aunt’s application for guardianship. After guardianship was granted, Mother asked to visit B., but Aunt told her she needed to get a visitation order. Mother never presented Aunt with any such order. Within the first two or three months, Mother sent several cards to B. Mother also called B. on Christmas 2003 and on his birthday in June 2004. A few months later, Mother called Grandmother’s house. Since then, Mother had made no contact with B. Mother was never invited to any family gatherings because Aunt did not know how to reach her. Mother had not provided any support for B. during the guardianship.
Father’s contact with B. typically occurred at Grandmother’s house during holidays and family gatherings. The gatherings would last only a single day. Also, Father sometimes saw B. at Grandmother’s house when Grandmother was taking care of B. Aunt estimated that Father saw B. 12 to 20 times per year. Aunt did not object to the contact between Father and B. B. knew him and called him “Dad.” Father did not initiate contact with B., except on two occasions. On the first, Father took B. to a company picnic in about 2005. On the second, Father asked to take B. to a company picnic in 2007 (after Aunt filed the petition), but Aunt refused to let him go because Father was taking his new family. Aunt objected to Cheryl because of her drug use.
Since Aunt had taken custody of B., Father had not contributed any financial support for B., other than buying B. two pairs of shoes and a ski jacket. Aunt never received any public assistance for B.
Aunt chose to seek adoption rather than continuing guardianship because she felt no one else was taking care of B. and she thought it was the necessary step to insure B. “would be in good hands for the rest of his life.”
Before Aunt filed the petition, she discussed her intentions with Father so he would not be “blindsided.” The following day, Father served Aunt with papers regarding visitation with B. Ultimately, the court ordered six to ten hours of supervised visitation every other week, with the condition that Cheryl could be present only if Aunt agreed. Aunt did not have a problem with Father’s visits with B. under the visitation order, but Aunt did not want B. exposed to drug addicts, so she refused to allow him to visit with Father when Cheryl was present. Aunt did not mind when Father brought his two daughters. Father did not always utilize his visitation time; some weeks he did not visit with B.
Father
Father testified that during the first nine months or so of Aunt’s guardianship he took B. to a few car races and a motorcycle race. He also took B. on day-long fishing trips and to a company picnic. Other than those visits, Father typically did not initiate visits with B. because he did not feel welcome, perhaps because he had been a drug addict many years ago. For a while, Father saw B. during family holiday gatherings and by accident at Grandmother’s house. Father estimated that from 2003 to 2004, he saw B. 30 or 40 times; from 2004 to 2005, he saw him about 18 or 20 times.
Once Father got involved with Cheryl, however, he saw B. less frequently. Father was no longer included in family gatherings because Aunt did not want B. exposed to Cheryl. Father saw B. only at the accidental meetings at Grandmother’s house. Father spent his free time with his new family, which included Cheryl and their one- and two-year-old daughters. He described his new family as his “immediate family that is closest to me now.” Father worked six or seven days a week, and dedicated any remaining time to his new family. But when Aunt stated her interest in adopting B., Father decided he needed to divide his time between his new family and B. For this reason, he sought the visitation order. Since obtaining the visitation order, Father tried to see B. every Wednesday. Because he was now making more money, he had more resources so he could see B. more. Father believed B. loved him and enjoyed visiting with him. B. knew him as his father and called him “Dad.” Father did not see any reason why his parental rights should be terminated.
Mother
Mother testified that the child endangerment charges against her in 2003 were completely dropped. She contested Aunt’s guardianship petition, but could not get any help. She tried talking to Aunt, but eventually Aunt would not speak to her anymore. During the first year, Mother attempted to contact B., but eventually Aunt ended Mother’s calls and refused to allow her to talk to B. Mother hired an attorney in October 2005. He failed to “do a darn thing,” including file any papers. In April 2006, she hired another attorney, but he was killed in a car accident before he got started on her case. She paid each attorney about $5,000.
For a while, Mother mailed B. presents, such as a skateboard, clothes, toys and books. She sent them every month, but she did not know if B. received them. Mother did not attempt to support B. financially because she did not know she was supposed to; furthermore, she quit having contact with Aunt after about one year. Mother, who had a college degree, was employed at the time of the guardianship hearing and at the time of the hearing on the petition.
Mother admitted she had not made any attempt to contact B. within the 12 months preceding the hearing. She had always known where Aunt lived and she had tried to contact her in the past.
Sandra
Mother’s friend, Sandra, testified that Mother came to live with her for about three months when she was released from jail. Mother wanted to get her life in order to get B. back. Mother mailed B. cards and packages and tried to call him frequently, but Aunt would not let her speak to him. The cards and packages Mother sent to Aunt’s house contained Mother’s address and phone number, so Aunt would know how to contact Mother. Mother tried to get legal aid but there was no funding and she had no money.
Sandra was present when Mother called B. on Christmas 2006, but Sandra did not know whether Mother had attempted to contact Aunt within the six months preceding the hearing.
DISCUSSION
I. Standard of Review
The trial court’s finding of abandonment must be supported by clear and convincing evidence. (§ 7821.) On review, we are limited to a determination whether substantial evidence exists to support the trial court’s findings. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211.) We must consider the entire record in the light most favorable to the judgment and determine whether it contains substantial evidence, i.e., evidence that is reasonable, credible and of solid value to support the court's finding. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1313.) “Thus, ‘[a]ll evidence most favorable to the respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.’ [Citations.]” (Id. at p. 1316.)
The parties here did not request a statement of decision under Code of Civil Procedure section 632. That failure constitutes a waiver of factual findings and legal conclusions. (In re Randi D. (1989) 209 Cal.App.3d 624, 631; Hall v. Bureau of Employment Agencies (1976) 64 Cal.App.3d 482, 496.) “Under these circumstances, all intendments favor the ruling below [citation], and we must assume that the trial court made whatever findings are necessary to sustain the judgment. [Citation.]” (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793, superseded on other grounds by statute as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448.) Under the doctrine of implied findings, we infer that the trial court made any and all findings necessary to support the judgment, and we review such implied findings under the substantial evidence standard. (California School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148 Cal.App.4th 510, 521; Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140.) If there is any substantial evidence to support the judgment, it must be affirmed. (Hall v. Bureau of Employment Agencies, supra, at p. 496.)
II. Abandonment
A proceeding to free a child from parental custody and control may be brought under section 7822 when “[t]he child has been left by both parents … in the care and custody of another person for a period of six months 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.” (§ 7822, subd. (a)(2), italics added.) “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.” (§ 7822, subd. (b), italics added.)
“‘“‘In order to constitute abandonment there must be 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.’” [Citations.]’ [Citation.] Accordingly, the statute contemplates that abandonment is established only when there is a physical act -- leaving the child for the prescribed period of time -- combined with an intent to abandon, which may be presumed from a lack of communication or support. The elements of abandonment for purposes of section 7822 are delineated as follows: (1) the child must be ‘left’ by a parent in the care and custody of another person for a period of six months; (2) the child must be left without any provision for support or without communication from the parent; and (3) the parent must have acted with the intent to abandon the child. [Citation.]” (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) The party seeking a declaration of abandonment must prove the offending parent intended to abandon the child for the statutory period. (See In re Daniel M. (1993) 16 Cal.App.4th 878, 886; People v. Ryan, supra, 76 Cal.App.4th at p. 1315.)
III. Parental Leaving of Child
“The threshold issue … is whether the minor was ‘left’ within the meaning of the statute. The fact that a parent has not communicated with [or supported] a child for a period of six months or that the parent intended to abandon the child does not become material under section 7822 unless the parent has ‘left’ the child.” (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.)
In this case, the trial court impliedly found that both Mother and Father left B. within the meaning of section 7822. On appeal, Mother contends she did not leave B. because B. was effectively “taken” by court order when Aunt was granted guardianship over him. Mother relies on In re Cattalini (1946) 72 Cal.App.2d 662 and In re Jacklyn F., supra, 114 Cal.App.4th 747 for the proposition that a judicial order taking custody of a child may not support a finding of abandonment.
In In re Cattalini, the court noted “the term [‘left’] appears to connote voluntary action.” The court held “it may not be said that [the father] left his children in the care and custody of the [mother] when, by an order of the court, they were taken from the joint control of their parents and placed in the sole care and custody of the mother.” (72 Cal.App.2d at p. 665.)
In In re Jacklyn F., the issue was whether a child had been left by the mother in the care and custody of the grandparents when the grandparents were granted guardianship of the child. (114 Cal.App.4th at p. 756.) The court found that “[o]nce the guardianship was granted, [the mother] was no longer legally entitled to custody of the [child] without further court order. At such point, the [child’s] custody status became a matter of judicial decree, not abandonment.” (Ibid.) Although the court did “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,” the court concluded that was not such a case. (Ibid.) The court explained that the mother’s “conduct following the granting of the guardianship -- which included sending ‘stacks’ of letters to the [child] but failing to visit her -- did not constitute ‘parental nonaction’ amounting to a leaving.” (Ibid.)
In In re Amy A. (2005) 132 Cal.App.4th 63, the father failed to appear during the divorce proceedings and made no attempt in the following years to seek modification of the custody order. He had visitation rights, but he failed to exercise them. He did not provide for Amy’s care or participate in her medical emergencies. The court concluded that the father’s “repeated inaction in the face of the custody order provide[d] substantial evidence that he voluntarily surrendered his parental role and thus ‘left’ Amy within the meaning of section 7822. [Citation.]” (Id. at p. 70.)
These and other cases stand for the proposition that a parent will not be found to have voluntarily left a child in the care and custody of another person where the child is effectively taken from the parent by court order, unless the parent’s subsequent nonaction converts the judicial taking into a parental leaving. (In re Cattalini, supra, 72 Cal.App.2d at p. 665; In re Jacklyn F., supra, 114 Cal.App.4th at p. 756; In re Amy A., supra, 132 Cal.App.4th at p. 70; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 815- 816 [mother failed to undergo counseling necessary to preserve visitation rights; token efforts to regain visitation rights indicated abandonment; mother’s intelligence was simply not reconcilable with her minimal efforts to regain some measure of custody of her daughter if she really desired it; minimal efforts were result of inertia and lethargy].)
In this case, Mother contested Aunt’s guardianship of B. Once Aunt gained guardianship, Mother sent B. cards and gifts for a few months. Mother attempted to visit B., but Aunt refused to allow her to visit and told her she needed to obtain a visitation order to do so. We agree with Mother that under these facts she did not leave B. when the court granted Aunt guardianship of him. But the analysis does not end here. Mother’s subsequent nonaction in the face of the custody order provided substantial evidence that the judicial taking was transformed into a parental leaving. Because Mother’s wishes to visit B. were thwarted by Aunt, who had legal guardianship of B., Mother was required to take legal action to secure visitation with B. Aunt even informed Mother she would need to take legal action before she could see B. According to Aunt, Mother’s last contact with B. was in approximately August or September 2004 (a few months after B.’s birthday in June). Mother did not hire an attorney until October 2005, two years after Aunt took guardianship and one year after Mother’s last contact with B. Mother hired another attorney several months later, but he died. According to Mother, both attorneys failed to do anything or file any papers, despite each being paid $5,000. The trial court was entitled to conclude that Mother, who was college-educated (and employed, at least at the time of the two hearings), had not seriously attempted to obtain visitation with B. or to modify the order removing B. from her custody, and therefore had failed to take adequate action to regain her parental role. Mother’s nonaction after the court granted Aunt guardianship constituted substantial evidence to support the trial court’s implied finding that Mother voluntarily surrendered her parental role and left B. with Aunt within the meaning of section 7822.
IV. Intent to Abandon
Intent to abandon is a question of fact. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) “‘“Intent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire.” [Citation.]’” (People v. Ryan, supra, 76 Cal.App.4th at p. 1316.) “‘In determining a parent’s intent to abandon, the trial court may consider not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of the effort under all the circumstances [citation], as well as the quality of the communication that occurs ....’ [Citation.]” (Ibid.) A parent’s “failure to provide support” for the child or “failure to communicate” with the child for a period of six months or more “is presumptive evidence of the intent to abandon,” and “[i]f the parent [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent ….” (§ 7822, subd. (b).) To overcome the statutory presumption of intent to abandon, the parent must make more than token efforts to support or communicate with the child. (Ibid.; In re B.J.B., supra, at p. 1212.) The parent’s efforts should also show a genuine desire to maintain the parental relationship. (In re B.J.B., supra, at p. 1212.) “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. [Citation.]” (In re Amy A., supra, 132 Cal.App.4th at p. 68, fn. omitted.)
Here, Mother’s failure to communicate with B. for two years raised a rebuttable presumption of Mother’s intent to abandon him. Mother contends her failure to visit cannot be used against her because neither the courts nor Aunt would permit her to visit. However, Mother’s failure to take legal action -- to make some kind of genuine effort to obtain visitation -- following the granting of guardianship suggested she was not serious about securing visitation rights, regaining custody or maintaining a parental relationship with B. These circumstances provided substantial evidence to support the trial court’s implied findings that Mother’s efforts to communicate with B. by seeking to secure visitation rights were not genuine and that she intended to abandon B. for the statutory period.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Levy, J.