Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. AN12418 Marshall Y. Hockett, Judge.
HUFFMAN, J.
Pedro D. appeals a judgment terminating his parental rights to Destiny D. on the basis of abandonment. (Fam. Code, § 7822.) Pedro contends the evidence was insufficient to show that he voluntarily left the child with her mother, Regina V., or that he intended to abandon her. Pedro also contends the juvenile court improperly considered the child's best interests.
Statutory references are to the Family Code.
FACTS
In 1995 Pedro and Regina met and started dating. In March 1997 Destiny was born in Santa Clara County, California. Pedro was present for the birth of his daughter, and his name appears on the birth certificate. In 1998 Pedro was arrested. In May 1999 Regina and Destiny moved to Texas to live with the maternal family. When Pedro was released from custody, he moved to Texas to live with Regina and Destiny.
In June 1999 Pedro moved back to San Jose, California. He did not tell Regina he was leaving. Pedro left all his belongings behind, purchased a bus ticket and left from work. The last time Pedro saw Destiny was in June 1999.
Pedro and Regina kept in contact for a couple of years by telephone. Pedro repeatedly told Regina that he would return to Texas, but he did not do so. During most of the telephone conversations, Pedro did not talk to Destiny.
In July 2001 Regina met Ricardo V., Jr., and they soon began dating.
In the fall of 2001 Regina told Pedro that she was dating someone and asked him to stop telephoning her and making promises that he would return. This upset Pedro, who threatened to take Destiny from Regina. The last telephone conversation between Pedro and Regina took place in March 2002.
In 2002 Pedro started sending greeting cards to Destiny on her birthday and at Christmas. The last card was received in 2004.
On December 28, 2002, Regina and Ricardo married in Texas. Ricardo, who is a Navy corpsman, has been supporting Destiny since early 2002.
On April 24, 2007, Ricardo and Regina petitioned the juvenile court to free Destiny from Pedro's custody and control so that Ricardo could adopt her. At the time the petition was filed, Pedro was incarcerated in a state prison.
In a May 2007 interview, Destiny, then 10 years old, told a social worker that she had a very good relationship with her stepfather, Ricardo. Destiny referred to Ricardo as "Dad." Destiny said she wanted her stepfather to adopt her. Destiny also said that although she is aware of Pedro, she has no memory of him, and she would like to meet Pedro someday if the opportunity occurs.
The juvenile court found that Pedro had abandoned Destiny and had the requisite statutory intent to abandon her. The court also found that Pedro had made only token efforts to communicate with Destiny since he last saw her in 1999. The court granted the petition to free Destiny from the custody and control of Pedro.
DISCUSSION
I. Abandonment Issues
Pedro challenges the court's finding of abandonment, claiming there is insufficient evidence to show: (1) he left Destiny within the meaning of section 7822; and (2) he had the requisite intent.
Section 7822, subdivision (a) provides in part: "A proceeding under this part may be brought if any of the following occur: [¶] . . . [¶] (3) One 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." Section 7822, subdivision (b) provides: "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 . . . ."
The three elements of abandonment for purposes of section 7822 are: (1) a parent leaves his or her child in the care and custody of another person for the prescribed period of time; (2) the child must be left without any provision for support or without communication from the parent; and (3) the parent acts with the intent to abandon the child. (See In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) The juvenile court's finding of abandonment must be supported by clear and convincing evidence. (§ 7821.)
On review, we determine whether substantial evidence supports the trial court's findings. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1211.) We 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. (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 931.)
Did Pedro Voluntarily Leave Destiny?
Section 7822 applies only when a parent has voluntarily left his or her child in the care and custody of the other parent with the intent to abandon the child. (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.) In this context, the term "left" connotes "voluntary action." (In re Amy A. (2005) 132 Cal.App.4th 63, 69.)
Thus, the threshold issue before the court "is whether the minor was 'left' within the meaning of the statute. The fact that a parent has not communicated with a child for a period of [one year] or that the parent intended to abandon the child does not become material under section 7822 unless the parent 'left' the child." (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.)
Substantial evidence establishes that Pedro voluntarily "left" Destiny within the meaning of section 7822. In June 1999 Pedro left Destiny and Regina, with whom he was living with in Texas, and moved to San Jose. Pedro did not tell Regina that he was leaving; nothing in this record indicates that Destiny was taken from Pedro's custody and care by coercion in any manner or against his wishes.
However, Pedro claims he did not voluntarily leave Destiny because he was involuntarily incarcerated, which rendered him unable to communicate with or support Destiny. Therefore, Pedro contends a finding that he "left" Destiny with Regina as required by section 7822 is precluded. Pedro is mistaken.
The fact Pedro was incarcerated at times due to his criminal activity did not rule out a finding that he voluntarily abandoned Destiny. (In re Rose G. (1976) 57 Cal.App.3d 406, 424-425.) "[B]eing incarcerated does not, in and of itself, provide a legal defense to abandonment of children. It was possible to ascertain the children's whereabouts and at least show concern about their welfare . . . ." (Ibid.; see also Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1012.) Moreover, no one forced Pedro to commit the crime for which he was incarcerated; he participated in illegal activity "voluntarily." (Allison C., at p. 1012.)
Pedro also cannot successfully challenge the court's finding on abandonment by his protestations against the petition filed by Ricardo and Regina. It is the time period before the filing of the petition that is relevant in determining abandonment. The postpetition period is not relevant. (In re Amy A., supra, 132 Cal.App.4th at p. 68.)
What the evidence shows is that Pedro last saw Destiny in June 1999. His last communication with his daughter was in December 2004, when he sent her a Christmas card. Pedro has not supplied child support for Destiny since 1999. Under section 7822, an abandonment finding is premised on the failure of a parent to communicate with his or her child or provide child support for a period of one year. Regina and Ricardo filed their petition on April 24, 2007. Substantial evidence supported the court's finding that these prerequisites for a section 7822 petition had been met.
Intent to Abandon
Abandonment is a factual question, and our standard of review is the substantial evidence test. (In re B. J. B., supra, 185 Cal.App.3d at p. 1211.) " 'Intent to abandon . . . may be found on the basis of an objective measurement of conduct, as opposed to stated desire.' " (Id. at p. 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.)
A parent's failure to communicate with his or her children for a period of a year is "presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) Further, if a parent makes "only token efforts to support or communicate . . . the court may declare the child abandoned by the parent . . . ." (Ibid.) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.)
Since June 1999 Pedro has not seen Destiny, who was two years old at the time. Eight years later, Ricardo and Regina filed their petition. During that period, Destiny went from a toddler to a 10-year-old girl, who did not remember Pedro. The record is not clear as to how much telephone contact Pedro had with Destiny; Regina indicated that many of his calls had to do with the relationship between her and Pedro. In any event, the telephone calls ended in 2002. From 2002 through 2004, Pedro sent Destiny cards six times—for her birthdays in 2002, 2003 and 2004, and for Christmas in 2002, 2003 and 2004. After that, Pedro did not have any further communication with Destiny.
Regardless of whether the six greeting cards were token efforts, the record shows Pedro had no contact with Destiny during 2005, 2006 and from January 1, 2007 to April 24, 2007, when Ricardo and Regina filed their petition to free Destiny from the custody and control of Pedro. In other words, it is undisputed that Pedro had no contact with his daughter for two years and almost four months before the petition was filed. "[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 . . . ." (In re Rose G., supra, 57 Cal.App.3d at p. 420.)
Pedro's protestation that he was not able to maintain contact with Destiny because she and Regina moved frequently is not persuasive. Pedro had sent his greeting cards to Destiny's maternal grandparents. The grandparents' address had not changed. Evidence that the parents had common acquaintances who could have assisted in facilitating contact with the child supports a finding of intent to abandon. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.)
Nothing in the record indicates that Pedro attempted to remain in contact with Destiny after Christmas 2004 or that his incarceration prevented him from continuing to send cards or other mail. There is no showing that Pedro would have been thwarted had he tried to communicate with Destiny.
Pedro also argues that letters he sent to juvenile court in which he proclaimed his plans to resume contact with Destiny after he is released from prison rebut the presumption of section 7822, subdivision (b). We disagree.
The court was not required to believe Pedro's assertions of continuing parental interest. (See In re B. J. B., supra, 185 Ca1.App.3d at p. 1212.) Further, these assertions do not overcome the presumption of intent to abandon as a matter of law. (Ibid.) The requisite statutory intent to abandon a child "does not require an intent to abandon permanently. Rather, an intent to abandon for the statutory period is sufficient." (In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) "Simply stated, a child cannot be abandoned and then put 'on hold' for a parent's whim to reunite." (Ibid.)
Moreover, assuming arguendo that Pedro's assertions overcame the statutory presumption, the evidence was still sufficient to sustain the court's determination of an intent to abandon. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.) The undisputed evidence that Pedro did not communicate with Destiny for more than two years and three months despite having the grandparents' address "did not lose its effect as ordinary evidence." (Ibid.) Further, the court was entitled to find that Pedro's contacts with Destiny for the three years preceding that period—the six greeting cards—were token efforts. Substantial evidence supports a finding that Pedro intended to abandon the minor within the meaning of section 7822.
II. Best Interests of Child
Pedro contends that the juvenile court improperly considered evidence of Destiny's best interests in deciding the abandonment issue. Pedro is mistaken.
Section 7890 provides that when a court hears a petition to free a child from the custody and control of his or her parent, "the court shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child." (See also § 7801 [mandating liberal construction of the law in freedom from parental custody and control proceedings "to serve and protect the interests and welfare of the child"].)
In a section 7822 proceeding, the wishes of the child become relevant only if the court makes a finding of abandonment. (In re Welch (1951) 108 Cal.App.2d 466, 474.) Until such a finding is made, "[t]he child's wishes, with respect to where she preferred to live, were immaterial upon that issue." (Ibid.) Or put another way, a finding of abandonment is a condition precedent to a consideration of the child's best interests. "Absent intent on the part of the parents to abandon the child . . . the best interests and welfare criteria are simply not applicable." (In re Baby Boy S., supra, 194 Cal.App.3d at p. 933.)
Contrary to Pedro's assertion, the court did not consider Destiny's best interests before deciding the abandonment issue. The court explicitly found that Pedro had abandoned Destiny and had the requisite intent to abandon before moving on to a consideration of the child's best interests. Pedro has taken the court's comments about Destiny's best interests out of context and ignored the court's findings on abandonment, which preceded the court's best interests discussion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., IRION, J.