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In re Kiley S.

California Court of Appeals, Fourth District, First Division
Sep 18, 2008
No. D052671 (Cal. Ct. App. Sep. 18, 2008)

Opinion


In re KILEY S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. PATRICK S., Defendant and Appellant. D052671 California Court of Appeal, Fourth District, First Division September 18, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. AN12616, Joan P. Weber, Judge.

HUFFMAN, J.

Patrick S. appeals a judgment terminating his parental rights to his minor daughter, Kiley S., on the basis of abandonment under Family Code section 7822. Patrick contends he did not "leave" Kiley in the care and custody of another person with the intent to abandon her, but instead, Kiley's mother N.B. prevented him from having contact with his daughter. We affirm the judgment.

Statutory references are to the Family Code.

FACTUAL AND PROCEDURAL BACKGROUND

Patrick and N.B. dated for several years before N.B. became pregnant in 2001. That same year, Patrick and N.B. began living together. Patrick was present at Kiley's birth and his name appears on the birth certificate. Patrick and N.B.'s relationship ended in November 2003 because of Patrick's excessive gambling habits and drug abuse.

In May 2004 N.B. filed for sole custody of Kiley. Patrick did not appear at the custody proceedings and N.B. received sole legal and physical custody of Kiley. The court ordered Patrick to pay child support and granted supervised visits. Patrick visited Kiley about five times between May 2004 and 2005. He did not participate in supervised visits and instead claimed N.B. denied him visitation.

Patrick's last visit with Kiley was in March 2006. He came by N.B.'s home unannounced and met with Kiley for about five minutes. After this visit, Patrick did not have further contact with Kiley. In November 2006 Patrick was arrested and remained in jail until June 2007. He claims he wrote to Kiley while in jail but N.B. said she never received letters or cards from Patrick.

In September 2006 N.B. married her boyfriend Jeremy. Jeremy had been providing financial support for Kiley since 2004. Kiley's paternal grandparents also provided N.B. and Kiley $300 a month.

In October 2007 N.B. filed a petition to declare minor free from parental custody and control to terminate Patrick's parental rights, freeing Kiley for adoption by Jeremy. The petition alleged Patrick had left Kiley in the care and custody of N.B. for more than one year. The petition further alleged Patrick had not communicated with or supported Kiley for more than one year.

In a report prepared by the San Diego County Health and Human Services Agency (Agency) under section 7822, the Agency's social worker recommended that Patrick's parental rights be terminated because Patrick had not contacted Kiley for more than one year nor made provisions for Kiley's care.

The court conducted a trial on the petition. The court received in evidence the Agency's report and heard testimony from N.B., Patrick, and the paternal grandmother. N.B. testified that Patrick visited Kiley about five times between 2004 and 2005. After Patrick's visit in 2005, Patrick did not see Kiley again until March 2006. N.B.'s home and telephone number remained unchanged the entire time Patrick was in and out of contact with Kiley.

Patrick testified at trial that he did not know Kiley very well nor did he remember the last time he saw her. He claimed he left Kiley a gift for her birthday in 2006 at N.B.'s door but N.B. never saw the gift. Patrick further testified he provided $300 to Kiley sometime in 2004 or 2005. Other than this single payment, Patrick claimed he gave money to Kiley's grandmother but did not always tell the grandmother the money was for Kiley. N.B. stated she received financial support on a monthly basis from the paternal grandmother and did not believe the money was from Patrick. The checks from the grandparents, however, were signed by the grandmother. The grandmother testified Patrick would sometimes throw money in the family "pot" and say "make sure N.B. gets it," but the grandmother never told N.B. that the money was from Patrick. The grandmother also did not know whether Patrick had given her money for Kiley in 2007.

The court found by clear and convincing evidence that there was a presumption of abandonment in that Patrick left Kiley in the custody of N.B. with no financial support, or communication, other than token attempts, for more than 12 months. The court further found Patrick was not to be given credit for the money paid by Kiley's paternal grandparents for Kiley's benefit.

DISCUSSION

Patrick challenges the sufficiency of the evidence to support the court's finding he abandoned Kiley within the meaning of section 7822. Patrick asserts he did not "leave" Kiley with N.B.; rather, his lack of communication with Kiley was the result of a judicial order granting N.B. sole custody of Kiley.

A

A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 "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." (§ 7822, subd. (a).) A parent's "failure to provide support, or failure to communicate" with the child for a period of one year or more is presumptive evidence of the intent to abandon. "If 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).) Abandonment is a factual question which we review for substantial evidence. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211; In re Amy A. (2005) 132 Cal.App.4th 63, 69.)

"The fact that a parent has not communicated with a child . . . or that the parent intended to abandon the child does not become material . . . unless the parent has 'left' the child" within the meaning of section 7822. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) A parent "leaves" a child by voluntarily surrendering the child to another person's care and custody. (In re Amy A., supra, 132 Cal.App.4th at p. 70 [existence of a judicial order placing custody of a child with one parent does not preclude a finding the other parent "left" the child within the meaning of section 7822]; In re George G. (1977) 68 Cal.App.3d 146, 160.) Conversely, "abandonment does not occur when the child is taken from parental custody against the parent's wishes." (Ibid.)

Here, the evidence shows Patrick's absence from Kiley's life was not precipitated by judicial action. (Compare In re Jacklyn F., supra, 114 Cal.App.4th at p. 756 [child's grandparents obtained legal guardianship of child against mother's wishes; mother repeatedly sought custody of child and opposed every legal action by grandparents that limited her contact with child].) Although N.B. achieved sole custody status of Kiley in 2004 as a matter of a judicial decree, Patrick was granted supervised visitation. Patrick, however, admitted he did not take court action to enforce visits after the custody hearing. In February 2006 N.B. received her first indication that Patrick wanted supervised visits but the visits never took place. Outside of supervised visits, Patrick saw Kiley about five times between 2004 and 2005. The visits took place because Patrick saw Kiley while she was at her paternal grandparents' home. The meetings did not transpire because of Patrick's efforts to schedule supervised visitation. After a brief final visit in 2006 and an alleged attempt to leave Kiley a birthday gift, Patrick did not see Kiley again for more than 12 months.

Further, Patrick did not provide support for Kiley. He gave N.B. and Jeremy $300 on Kiley's behalf in 2004 or 2005 but subsequently did not provide financial support. Patrick claims he gave the paternal grandmother money for Kiley, but the grandmother never indicated to N.B. that the money came from Patrick and she doesn't recall Patrick leaving any money in 2007. Patrick did not establish any kind of parental relationship with Kiley. Substantial evidence supports the court's finding Patrick "left" Kiley within the meaning of section 7822.

B

Having found Patrick left Kiley in N.B.'s care, the court was also required to find Patrick intended to abandon Kiley 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 is a factual question that may be resolved by objectively measuring the parent's conduct. (In re B.J.B., supra, 185 Cal.App.3d 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.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) As we previously noted, a parent's failure to communicate with his or her child for a period of one year is "presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) 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.)

The evidence shows that at the time the petition was filed, Patrick had not communicated, even on a "token" basis, with Kiley for more than a year. Patrick offered no evidence that he attempted to remain in contact with Kiley or that N.B. prevented him from calling, writing or simply inquiring about Kiley's well-being. He knew where N.B. lived and had her telephone number. Nothing in the record indicates Patrick would have been prevented from communicating with Kiley. "[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.) Substantial evidence supports a finding Patrick intended to abandon Kiley within the meaning of section 7822.

II

Patrick contends the court erred at trial by stating its findings had been made by a preponderance of the evidence when the findings should have been made by clear and convincing evidence.

The court initially did refer to the incorrect standard of evidence while reciting its findings on the record. However, the judge subsequently clarified her findings in the trial record. The trial court's minute order of February 25, 2008, explicitly states the court granted the petition based on the correct standard of clear and convincing evidence. Further, the minute order of February 29, 2008, clarifies and confirms the court indeed applied the clear and convincing standard of proof at trial. Thus, we conclude that Patrick has not established the court committed error or did anything other than clarify its findings to reflect what standard of proof was applied at trial.

DISPOSITION

The judgment is affirmed.

WE CONCUR BENKE, Acting P. J., McDONALD, J.


Summaries of

In re Kiley S.

California Court of Appeals, Fourth District, First Division
Sep 18, 2008
No. D052671 (Cal. Ct. App. Sep. 18, 2008)
Case details for

In re Kiley S.

Case Details

Full title:In re KILEY S., a Person Coming Under the Juvenile Court Law. SAN DIEGO…

Court:California Court of Appeals, Fourth District, First Division

Date published: Sep 18, 2008

Citations

No. D052671 (Cal. Ct. App. Sep. 18, 2008)