Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. A53577, Cynthia Bashant, Judge.
McCONNELL, P. J.
James W. appeals a judgment terminating his parental rights to his daughter, Shyanne, on a finding of abandonment under Family Code section 7822. James contends that insufficient evidence supports the court's finding that he left Shyanne in the care of the other parent with the intent to abandon her. We affirm the judgment.
Unless otherwise indicated, statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
Shyanne W. was born in July 2001 to James W. and Shannon V. They lived together but never married. In February 2002 James and Shannon separated after an incident of domestic violence. In June Shannon married Charles V. James moved to the State of Washington in November.
On September 22, 2006, as a companion to a stepparent adoption, Charles filed a petition under section 7822 to free Shyanne from James's custody and control of her father. The petition alleged James had left Shyanne in the custody of her mother, and did not communicate with Shyanne or make any provisions for her support for more than one year. James's last contact with Shyanne was in April 2002.
James contested the petition. He asserted Shannon had avoided all contact with him and withheld information about Shyanne's residence.
Tina Jako, a social worker with the San Diego County Health and Human Services Agency (Agency), prepared a report to the court as required under section 7851. During her investigation, she learned that James, Shannon and Shyanne had lived together on E[] Avenue. In August 2001 Charles began living with them as a roommate. The relationship between James and Shannon deteriorated. In February 2002 James was arrested on charges of domestic violence and never returned to the home. James asserted Shannon fabricated the report of domestic violence to force him to leave. The district attorney dismissed the charge for lack of evidence. In June Shannon, Charles and Shyanne went to Texas for a three-week vacation where Shannon and Charles married.
Shannon told Jako that she had received custody of Shyanne through a court order and James had been granted visitation rights. James stated the court did not issue a custody order but had merely advised them to come to an agreement regarding his visitation with Shyanne. James had three weekend visits with Shyanne. Their last visit was in April 2002.
James told Jako that when he tried to arrange a fourth visit, Shannon told him that he was "only the sperm donor" and would never see Shyanne again. Shannon then hung up the telephone on James when he attempted to contact her, and later disconnected her telephone number. James tried to serve Shannon with court papers and was informed she had moved to Texas. He tried to locate Shyanne in Texas through a private company and the Internet. James asserted that he paid child support until April 2002.
Shannon reported that James stopped visiting Shyanne in March 2002 and did not attempt to contact her. Shannon never moved from the residence at on E[] Avenue. Her telephone number was listed in the telephone book.
Jako interviewed Shyanne and determined that the five year old had an age-appropriate understanding of adoption. Shyanne referred to Charles as "daddy." Shyanne understood that she had " 'another daddy' and his name is Jimmy." Shyanne did not remember James.
Jako concluded that James had tried to locate his daughter but Shannon had made it "very difficult" for James to have contact with Shyanne. However, Shannon remained at the same residence from 2001 to 2007. Jako opined that Shyanne was denied a relationship with her father by Shannon's actions and James's lack of effort. Despite Shannon's lack of cooperation, Jako was "forced" to agree with the petition. From April 2002 James did not contact his daughter or provide any financial support for her care. Shyanne had not seen her father in five years and did not remember him; therefore, the proposed adoption was in Shyanne's best interest. Jako recommended the court grant the petition to free Shyanne from James's custody and control.
At trial, Charles testified that he moved into the residence on E[] Avenue in August 2001 and still lived at that address with Shannon and Shyanne. At some point in 2002 or 2003, he and Shannon had a roommate named Ruben.
James testified that he never intended to abandon his daughter. In late June 2002, after Shannon told him that he would never see his daughter again and did not answer or return his telephone calls, James started the legal process to maintain his parental relationship with Shyanne. The process server informed him Shannon no longer lived at the E[] Avenue address and a person named Ruben had answered the door. James believed Shannon had moved to Texas and searched for her in that state. He did not file a missing persons report or employ a private investigator to locate his daughter, nor did he create an account for Shyanne for her financial support.
Shannon testified that she never tried to keep Shyanne away from James. She did not instruct Ruben to say she had moved. When Shannon returned from Texas, she tried to contact James. James did not leave a forwarding address. He was no longer in the military. She could not obtain a forwarding address from the military because she was not his wife. Shannon did not know that James had tried to serve her with papers seeking court-ordered visitation.
After the incident of domestic violence in which James had tried to strangle her, Shannon obtained a temporary restraining order. It remained in effect until September 2002. The court informed her that she and James each had full custody of Shyanne. The order directed that visitation occur every other weekend. James exercised his visitation rights three times. He then told Shannon he was moving and would be in contact with her. After April 2002 James did not provide any kind of child support. He never sent Shyanne a birthday card or Christmas present.
The court stated that it did not find credible James's assertions he had not communicated with or supported his daughter because he could not locate Shannon. In view of the fact that Shannon remained at the same address, James would have been able to contact her and demand visitation had he made any significant attempt to do so. For a period of at least one year, James did not contact Shyanne and did not pay child support. The court found that James intended to abandon Shyanne and terminated his parental rights.
On July 12, 2007, the minor requested that this court take judicial notice of Family Court orders entered on March 27, 2002. (Evid. Code, § 452, subd. (d).) No other party objected to the request. We grant the motion for judicial notice. The March 27, 2002 order restrains James from contact with Shannon except for peaceful contacts related to visitation. The order made no provision for custody or visitation. It expired on September 27, 2002.
DISCUSSION
A
Introduction
James contends he did not voluntarily "leave" Shyanne in Shannon's custody. He maintains that insufficient evidence supports the court's finding that he intended to abandon his daughter, and argues the court improperly relied on a determination of Shyanne's best interests when it terminated his parental rights.
Charles asserts James voluntarily surrendered any parental role in Shyanne's life for more than one year, and the court properly granted the petition under section 7822.
We apply a substantial evidence standard of review to the trial court's findings, "keeping in mind that in a section 7822 proceeding all of the trial court's findings must be made by clear and convincing evidence. (§ 7821.)" (In re Amy A. (2005) 132 Cal.App.4th 63, 67 (Amy A.).) Under the substantial evidence rule, we have no power to pass on the credibility of witnesses, attempt to resolve conflict in the evidence or to determine where the weight of the evidence lies. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
B
Section 7822A proceeding to have a child declared free from the custody and control of a parent may be brought pursuant to section 7822. To show that a parent has abandoned his or her child, the court must find, by clear and convincing evidence, "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 lack of communication, support or intent to abandon 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'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." (§ 7822, subd. (b).) 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 Daniel M. (1993) 16 Cal.App.4th 878, 885 [construing predecessor statute].)
A
There Is Substantial Evidence to Support a Finding That James "Left" Shyanne Within the Meaning of Section 7822
James argues the trial court erred in terminating his parental rights because substantial evidence did not support the threshold finding that he "left" Shyanne in the care and custody of the other parent. (§ 7822, subd. (a).) James contends he did not voluntarily "leave" Shyanne in her mother's care and custody; rather, Shannon went to "extraordinary lengths" to keep him from being involved in Shyanne's life. In support, he cites social worker Jako's opinion Shannon made it "very difficult" for James to have a relationship with Shyanne.
To constitute abandonment under section 7822, a parent must voluntarily leave the child in the care and custody of the other parent. (In re George G. (1977) 68 Cal.App.3d 146, 160.) "[A]bandonment does not occur when the child is taken from parental custody against the parent's wishes." (Ibid.) Case law interpreting section 7822 consistently focuses on the voluntary nature of the parent's relinquishment of any parental role in the child's life. (Amy A., supra, 132 Cal.App.4th at p. 69.) Appellate courts have also concluded that under certain circumstances the nonaction of a parent may transform an initial involuntary loss of custody into a parental abandonment. (In re Jack H. (1980) 106 Cal.App.3d 257, 264, citing In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816; accord, Amy A., supra, 132 Cal.App.4th at p. 70.)
James testified that he attempted to initiate court action to gain custody of his daughter or establish visitation rights in late June 2002, and would have continued to do so had he been able to locate Shannon. He detailed his efforts to find his daughter. The court did not believe James's testimony. We accept the court's finding of credibility. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Substantial evidence supports the court's findings that James voluntarily "left" Shyanne in her mother's custody and then relinquished his parental role. (Amy A., supra, 132 Cal.App.4th at p. 69.) The court reasonably concluded that James would have located Shannon had he made "any kind of a significant attempt." This is not a case of a parent deliberately concealing his or her whereabouts or those of the child from the other parent. (Cf. In re Estate of Barassi (1968) 265 Cal.App.2d 282, 289.) Shannon did not move from the residence she had shared with James. She stated that her address and telephone number were in the telephone book, and her current driver's license listed the E[] Avenue address. Shannon did not try to conceal her identity. James knew Shannon's married name.
Further, although James's testimony suggests he believed "a man named 'Ruben' " had moved into the residence on E[] Avenue, the evidence shows that James knew Ruben was living at the residence with Shannon, Charles and Shyanne. James would have known Ruben's presence at the residence did not necessarily mean Shannon had moved. James did not contact Ruben to try to clarify Shannon's whereabouts.
Even if James believed Shannon had moved, he never sent a letter, card or support payment to Shannon at the E[] Avenue address with the expectation that it might be forwarded to her. Shannon provided James with their cellular telephone numbers. Charles's telephone number was still the same as it was in 2002. Other avenues were available to James to help him locate his daughter. Significantly, James did not contact the district attorney's office, file a missing persons report or hire a private investigator to help him locate his daughter.
Substantial evidence supports the court's finding that James voluntarily "left" his daughter within the meaning of section 7822, subdivision (a). We also conclude that even if Shannon had initially prevented James from exercising his visitation rights in April 2002, James's lack of reasonable action during the next four years transformed an initial involuntary loss of custody into a parental abandonment. (In re Jacqueline H., supra, 94 Cal.App.3d at p. 816 [mother "left" her child when she made minimal efforts to regain some measure of custody]; In re Jack H., supra, 106 Cal.App.3d 257, 264; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.)
B
James Did Not Rebut the Presumption of Abandonment
By the time Charles filed the section 7822 petition in September 2006, more than four years had elapsed since James had communicated with Shyanne or contributed to her support. James concedes that his failure to communicate with and to support Shyanne constitutes presumptive evidence of his intent to abandon her. (See § 7822, subd. (b).) Like any other rebuttable presumption, it may be overcome by opposing evidence. (In re Gano (1958) 160 Cal.App.2d 700, 706.)
James argues that abandonment cannot be predicated on his failure to support Shyanne because there is no indication in the record to show that Shannon demanded child support. (See In re Randi D. (1989) 209 Cal.App.3d 624, 630.) He asserts he would have supported his daughter had Shannon made a demand for support and also argues that Shannon prevented him from maintaining a relationship with Shyanne and providing for her support.
We reject James's argument. Section 7822 provides that failure to provide support or failure to communicate constitutes presumptive evidence of intent to abandon the child. (§ 7822, subd. (b).) Even where the presumption of abandonment is not premised on a failure to provide support, a parent may rebut the presumption of abandonment by showing that he or she attempted to support his or her child. For example, a parent might establish and fund an account for the child, contact child support services, make an offer of child support to the other parent or send child support payments to the other parent's last known address. (See, e.g. In re Cattalini, supra, 72 Cal.App.2d at pp. 666-667, 670-671; In re Estate of Barassi, supra, 265 Cal.App.2d at p. 289-290.) Here, James did nothing. Thus, there was no evidence at trial that would have allowed the court to find facts sufficient to rebut the presumption that James intended to abandon his daughter.
A parent may also rebut the presumption of abandonment based on failure to provide support to the child by showing he or she was unable to do so because of extreme financial hardship. (In re Cattalini (1946) 72 Cal.App.2d 662, 666.)
James also argues that he rebutted the presumption of abandonment by showing Shannon prevented him from communicating with his daughter and he was without any means to find her. In view of our rejection of this argument, ante, at pages 8-9, we need not readdress it here.
The record shows that James failed to communicate with or support his daughter for more than one year. (§ 7822, subd. (a).) The court reasonably concluded the evidence James presented was not sufficient to rebut the presumption of abandonment. We conclude that substantial evidence supports a finding that James intended to abandon his daughter.
C
The Court Did Not Improperly Apply a Best Interest Standard When It Determined That James Had Abandoned His Daughter
James asserts that the court may not sustain a petition under section 7822 on the ground that adoption is in the best interest of the child. A court may not terminate parental rights simply because it appears the child's best interest is served by adoption. (In re Daniel M., supra, 16 Cal.App.4th at p. 886; In re Baby Boy S. (1987) 194 Cal.App.3d 925, 933-934.) Rather, the court may only terminate parental rights if it concludes the evidence supports the required statutory findings under the relevant section of the Family Code. (See § 7822 et seq.; see also Welf. and Inst. Code, § 366.26.)
Here, James concedes the court made the requisite findings under section 7822. He argues the court's finding of abandonment is not supported by substantial evidence on review, and therefore the court erroneously terminated his parental rights on the nonstatutory ground that stepparent adoption was in Shyanne's best interest.
James's argument is wholly without merit. As James acknowledges, the court did not terminate his parental rights in the absence of a finding of abandonment. (In re Baby Boy S., supra, 194 Cal.App.3d at p. 933-934.) The court determined that the evidence presented at trial supported the allegations of the petition under section 7822 by clear and convincing evidence. On review, we have concluded that substantial evidence supports the court's findings. There is no error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, J., O'ROURKE, J.