Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Super. Ct. No. S-1501-AT-2529, Judith K. Dulcich, Judge.
Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Objector and Appellant.
Law Offices of Edward J. Quirk, Jr., and Edward J. Quirk, Jr., for Plaintiffs and Respondents.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
INTRODUCTION
R.H., Sr. (hereafter father), appeals the family court’s order declaring his minor child, R.H., Jr., abandoned and terminating his parental rights pursuant to Family Code section 7800 et seq. Father acknowledges he did not visit or support the child for a period of time in excess of six months, but contends he had no intent to abandon the child. We will affirm the order.
All further statutory references are to the Family Code unless otherwise noted.
FACTUAL AND PROCEDURAL SUMMARY
R.H., Jr., born in January 2006, has lived with and been cared for by F.C. and her husband L.C. since R.H., Jr., was five months old. R.H., Jr.’s mother was incarcerated in June 2006 and asked F.C., who is mother’s cousin, and L.C. to care for R.H., Jr. R.H., Jr.’s mother consented to having F.C. and L.C. adopt R.H., Jr.
Father had contact with R.H., Jr., almost daily during the first month after R.H. Jr.’s birth, although father was not listed as R.H., Jr.’s father on the birth certificate. Father was incarcerated in February 2006. While incarcerated, he sent some letters and cards to R.H., Jr.
F.C. and L.C. (collectively guardians) were appointed as R.H., Jr.’s guardians in May 2007. On July 19, 2007, the guardians filed a petition to terminate father’s parental rights on the grounds he had been convicted of a felony and had not communicated with or supported R.H., Jr. On August 13, 2007, father filed a letter with the family court stating he was to be released in March 2008 and “from that date on I plan to fully participate in my son’s life.”
After father’s release from prison in March 2008, father took up residence 10 houses away from where R.H., Jr., lived. In the first couple of months after his release from prison, father visited with R.H., Jr., three or four times for about 15 to 20 minutes per visit. When R.H., Jr.’s guardians asked father to call first, instead of simply stopping by, father stopped visiting R.H., Jr. Father’s last contact with R.H., Jr., was in March or April of 2008. Father never provided any support for R.H., Jr. R.H., Jr., was supported solely by his guardians since June 2006.
When F.C. and L.C. asked father to sign a consent to adoption form, father refused. Instead, R.H., Jr.’s mother completed paperwork for father to sign seeking to terminate the guardianship. Father failed to appear at the hearing on April 27, 2009, or to follow through on the paperwork.
The guardians filed a second petition to terminate father’s parental rights in May 2009. The family court appointed counsel for father and for R.H., Jr., in August 2009. In October 2009, father filed an opposition to the petition to terminate his parental rights. Father stated he did not intend to abandon his son, but the guardianship order did not provide for visitation by either parent.
At the hearing on the petition to terminate his parental rights, father acknowledged that it had been over a year since he had visited with R.H., Jr. He also acknowledged that he had never provided any financial support for R.H., Jr. Father acknowledged that at one point he told family court services that he would not oppose the guardians adopting R.H., Jr. Father testified he told them this because he was not sure R.H., Jr., was his child until a paternity test was conducted in October 2009 determining that he was R.H., Jr.’s biological father.
Father claimed the guardians had frustrated his attempts to visit with R.H., Jr., by requiring him to make an appointment, instead of just stopping by their home. He also claimed the guardians either did not answer when he called or, if they did answer, they made an excuse about why he could not visit.
F.C. testified that after she and L.C. asked father to call, instead of dropping in, father got upset and never contacted them again about scheduling a visit. They asked father to call because they worked outside the home and wanted to arrange a time that was convenient for all. L.C. told the family court services investigator that father never called to try and schedule a visit.
The investigative report filed with the family court stated that the guardians had provided a stable and loving home for R.H., Jr.; R.H., Jr., knew F.C. and L.C. as his parents; and R.H., Jr., had no awareness that father was his biological father. The investigator concluded that subsequent to his release from prison, father had made only token efforts to have contact with R.H., Jr., and that father had never made any provision for R.H., Jr.’s support. Father appeared conflicted about the petition to terminate his rights, indicating he wanted to maintain some contact with R.H., Jr., but he recognized R.H., Jr., had a stable home with his guardians. The investigator concluded that the provisions of section 7822, subdivision (a)(2) had been met and that it was in R.H., Jr.’s best interests to grant the petition.
Counsel for R.H., Jr., urged that the petition be granted in that father never had provided for R.H., Jr.’s support, had not contacted R.H., Jr., for a period of over six months, and R.H., Jr., considered his guardians his parents. Counsel opined that it was in R.H., Jr.’s best interests to have F.C. and L.C. as his parents.
The family court took the matter under submission on October 30, 2009. A ruling dated January 21, 2010, found that father had never made any provision for R.H., Jr.’s support and had not communicated with or contacted R.H., Jr., for over six months, evidencing an intent to abandon R.H., Jr. The family court’s ruling directed the prevailing parties to prepare a formal order declaring R.H., Jr., to have been abandoned and free from father’s parental control or custody.
On January 27, 2010, father filed his notice of appeal, apparently prematurely because the “Decree on Petition to Declare Minor Child Free From Parental Custody and Control” was not filed until March 15, 2010. On our own motion, we will augment the record on appeal to include the March 15, 2010, document. We will deem father’s appeal to be a timely appeal of the March 15, 2010, decree.
DISCUSSION
Father contends the evidence failed to establish an intent on his part to abandon R.H., Jr., and therefore the family court’s order must be reversed. He is mistaken.
Standard of review
A reviewing court must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment or order. Whenever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there was any substantial evidence, contradicted or uncontradicted, that supported the conclusions reached by the trial court. “‘If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed [citation].’” (In re Brittany H. (1988) 198 Cal.App.3d 533, 549 (Brittany H.).)
Section 7821 requires that all findings pursuant to section 7822 be supported by clear and convincing evidence. Where the law requires proof of a fact to be clear and convincing, the sufficiency of evidence to establish the fact is primarily a question for the trial court to determine. If there is substantial evidence to support its conclusion, the determination is binding upon the reviewing court. An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence legally is sufficient to support the finding of fact as to the abandonment. This also is true on the question of intent. (Brittany H., supra, 198 Cal.App.3d at p. 549.)
Abandonment
Section 7822, subdivision (a)(2) authorizes the termination of parental rights when a child has been left by both parents or the sole parent in the care and custody of another 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. In employing this phraseology, “the Legislature meant that an intent to abandon the child during that period of time, rather than an intent to abandon the child permanently, is sufficient to satisfy the statute. [Citations.]” (In re Daniel M. (1993) 16 Cal.App.4th 878, 882-883 (Daniel M.) [construing predecessor statutes].)
The purpose of this statute and other statutes governing the termination of parental rights is to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child’s life. (§ 7800.) To this end, these statutes shall liberally be construed to serve and protect the interests and welfare of the child. (§ 7801.)
The Legislature has determined the state’s interest in the welfare of children justifies the termination of parental rights when the criteria of section 7822 are satisfied. This is true even though the parent desires to eventually reestablish the parent-child relationship. “In other words, a child’s need for a permanent and stable home cannot be postponed for an indefinite period merely because the absent parent may envision renewing contact with the child sometime in the distant future. [Citations.] [¶] Simply stated, a child cannot be abandoned and then put ‘on hold’ for a parent’s whim to reunite.” (Daniel M., supra, 16 Cal.App.4th at pp. 883-885 [construing predecessor statutes].)
Section 7822 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. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) 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. (In re Amy A. (2005) 132 Cal.App.4th 63, 68 (Amy A.).) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. In determining a parent’s intent to abandon, the family court may consider not only the number and frequency of his or her efforts to communicate with the child but also the genuineness of effort under all the circumstances, as well as the quality of the communication that occurs. (In re B. J.B. (1986) 185 Cal.App.3d 1201, 1212.)
“Abandonment and intent ‘“are questions of fact for the trial judge.”’” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011 (Allison C.).) The failure to provide support or failure to communicate 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. (Id. at p. 1010; § 7822, subd. (b).)
The presumption regarding the intent to abandon is a presumption affecting the burden of producing evidence. (In re Rose G. (1976) 57 Cal.App.3d 406, 417-418.) The presumption “may be overcome by opposing evidence … and the question whether such intent to abandon exists and whether it has existed for the statutory period is a question of fact for the trial court, to be determined upon all the facts and circumstances of the case. [Citation.]” (In re Neal (1968) 265 Cal.App.2d 482, 488.)
Here, father admitted he never provided any support for R.H., Jr. Father also admitted that he had not visited with or contacted R.H., Jr., for a period of over one year. The presumption, therefore, is that father intended to abandon R.H., Jr. (§ 7822, subd. (b).)
Father claimed he did not intend to abandon R.H., Jr., but his attempts to visit with R.H., Jr., were frustrated by the guardians. The guardians, however, stated that they simply asked father to call first and schedule visits; father was angry about the request; and father never called to schedule a visit. The family court reasonably could credit the testimony of the guardians.
Additionally, father acknowledged that he initially told family court services he would not oppose adoption for R.H., Jr., but he changed his mind in October 2009 after a paternity test revealed he was R.H., Jr.’s biological father. R.H., Jr., should not remain in a holding pattern waiting for father to decide whether to pursue his parental rights. (Daniel M., supra, 16 Cal.App.4th at p. 885.)
Clearly, father knew of R.H., Jr.’s birth and made only sporadic attempts to see R.H., Jr., and then only for a few minutes at a time. Father never pursued paternity testing earlier, never followed through on attempting to set aside the guardianship, and never sought to obtain visitation rights under the guardianship. As the family court found, father’s attempts to maintain contact with R.H., Jr., were token, at best, and insufficient to rebut the presumption. (§ 7822, subd. (b); Amy A., supra, 132 Cal.App.4th at p. 71.)
Abandonment and intent are questions of fact for the family court, which the family court resolved adversely to father’s position. (Allison C., supra, 164 Cal.App.4th at p. 1011.) In the instant case, father essentially asks this court to reweigh the evidence and substitute our deductions for those of the family court. This we may not do. The credibility of witnesses and the probative value of their testimony are questions for the trier of fact. The power to weigh the evidence and resolve issues of credibility is vested in the trial court and not the reviewing court. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719.)
Father has failed to meet his burden of establishing that the family court’s findings and orders were not supported by substantial evidence. (Allison C., supra, 164 Cal.App.4th at p. 1011.) When the family court’s findings on intent and abandonment are supported by substantial evidence, they will not be disturbed on appeal. (Brittany H., supra, 198 Cal.App.3d at p. 549.)
DISPOSITION
The March 15, 2010, “Decree on Petition to Declare Minor Child Free From Parental Custody and Control” is affirmed.