Opinion
G037593
5-25-2007
In re TATIANA T., a Minor. TIMOTHY B. et al., Plaintiffs and Respondents, v. ANTHONY T. et al., Defendants and Appellants.
Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant Anthony T. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Amanda B. Van Deusen, Youmans and Walmsley, Inc., and Ted R. Youmans; John L. Dodd & Associates and John L. Dodd, for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
Anthony T. and Amanda B. appeal from separate judgments that terminated parental rights to their daughter, Tatiana T., upon petitions brought by the childs grandparents and guardians, Timothy B. and Gina B. Anthony and Amanda each argue there is insufficient evidence to support the respective judgment against them. We cannot agree, and so affirm.
Anthony and Amanda met in a homeless shelter. They left and began living together, and during this time Tatiana was born in January 1990. The relationship lasted until October 1991, when Anthony came home from work one day and found Amanda and Tatiana gone. Anthony made various efforts to locate Amanda, all without success.
We consider the evidence most favorable to the judgments, under the rule that a judgment of a lower court is presumed correct, and all inference must be drawn, and presumptions made, that support the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
At some point in 2001 or 2002, Amanda got in touch with her parents, the B.s. According to Timothy, during the ensuing two years the B.s were "actively involved in [Amandas] life and in the life of Tatiana." When Timothy asked about Tatianas father, Amanda told him Anthonys name and address, but "she did not want to bring up his background . . . . She did not want Tatiana to know about this, and . . . she chose not to disclose it . . . ."
In August 2004, the Los Angeles County Department of Children and Family Services (DCFS) wrote to advise the B.s there had been an allegation that Amanda was unable to care for Tatiana. Amanda met with the B.s and signed a written consent to their being appointed guardians for Tatiana. Apparently that satisfied DCFS, which closed its file without waiting to see if the B.s would be appointed guardians. The B.s took in Tatiana and filed a guardianship petition.
The guardianship application was heard in November 2004. Anthony had learned of Tatianas whereabouts only when notified of the hearing, and he appeared to oppose the application. The B.s were appointed temporary guardians of Tatiana, and Anthony was granted visitation.
In late November 2004, Anthonys visitation was suspended on motion of the B.s. After meeting Anthony for the first time at the hearing, the B.s inquired into his background, discovered he had eight felony convictions, and successfully argued he should not be allowed contact with Tatiana. Anthony responded with a paternity action that requested visitation. In January 2005, without waiting for a court order, he went to the B.s home and began banging on the door at 7 a.m. This prompted the B.s to obtain a restraining order prohibiting Anthony from attempting to contact Tatiana or coming within one thousand yards of their home. Between learning that Tatiana was living with the B.s in November 2004 and March 2005, Anthony never offered to contribute toward the support of the child.
In March 2005, the B.s filed a petition to terminate Anthonys parental rights to Tatiana. (Fam. Code, §§ 7820, 7825.) It alleged that Anthony had left the child in the custody of another since 2000, without any provision for support, and without communicating with the child, intending to abandon her.
All subsequent statutory references are to the Family Code unless otherwise indicated.
Meanwhile, after the B.s were appointed guardians, Amanda called Tatiana twice during November and December 2004, and came for a Christmas 2004 visit with presents for Tatiana. After that, according to Gina, Amanda sent the B.s lawyer a birthday gift for Tatiana, spoke with her father (Timothy) once, but otherwise never called and never visited the child, and Amanda never provided financial support for Tatiana. Gina said she had never told Amanda not to call, and never said she did not want Amanda to have any further contact with Tatiana.
In October 2005, the B.s filed a petition to terminate Amandas parental rights. The petition alleged Amanda had left Tatiana in the care and custody of the B.s since December 2004, without providing support or more than token contact, intending to abandon the child.
The Probate Court Services section of the Orange County Superior Court conducted an investigation in response to each of the petitions. A probate investigator interviewed the B.s, but neither Anthony nor Amanda responded to letters from the investigator asking for their statements regarding the respective petitions to terminate their parental rights. The investigator reported the B.s said Amanda has a history of mental illness and instability, she had resisted treatment, and Amanda and Tatiana had been living in the streets and homeless shelters. In 2004, Amanda was hospitalized for mental breakdowns on three occasions, during which time the B.s cared for Tatiana.
The probate investigator reported Anthonys eight felony convictions dating to 1988, including possession of a narcotic controlled substance, battery with serious bodily injury, assault with a deadly weapon, felon/addict in possession of a firearm, kidnapping, and evading a police officer, among others. At the time of the report on Anthony (May 2005), two bench warrants for his arrest were outstanding. The investigator opined that termination of the rights of both parents would be in the best interests of Tatiana.
The matter was tried by the court in August 2006. The evidence offered by the B.s was as set out above. Anthony testified he did not intend to abandon Tatiana. He believed the order appointing the B.s as guardians meant he could not provide any support for Tatiana. He was unwilling to send support through the B.s attorney after the attorney had Anthonys visitation suspended in November 2004, because he did not trust the attorney. After counsel was appointed for him in May 2005, Anthony sent the B.s two money orders for $100 each through his attorney. Anthony claimed he had purchased gifts for Tatiana but did not want to send them while Tatiana was staying with the B.s, because they refused to let him see his daughter.
Amanda also testified. She said she did not have the ability to provide financial support for Tatiana, but she never intended to abandon the child. Amanda testified she had called her parents weekly between August 2004 and December 2004, asking to visit with Tatiana, but they refused to let her see the child until the Christmas 2004 visit. In a January 2005 call, Timothy told Amanda she could not talk to Tatiana or visit the child. Amanda did not have any contact with Tatiana after March 2005, although she tried to stay in touch "by mail, also, getting custody through the attorneys."
The trial court entered judgment for the B.s on both petitions. As to Anthony, it found he had failed to support Tatiana between August 2004 and March 2005, a period in excess of six months, and he intended to abandon the child. Anthonys parental rights were terminated and Tatiana was declared free from Anthonys custody and control. In a separate judgment on the petition against Amanda, the trial court found Amanda had failed to support Tatiana or communicate with her between December 2004 and October 2005, a period in excess of six months, and Amanda intended to abandon Tatiana. Amandas parental rights were terminated and Tatiana declared free from Amandas custody and control.
I
Anthony argues the evidence is insufficient because it fails to show he left Tatiana in the care and custody of the B.s or intended to abandon her. We disagree.
Under certain circumstances, proceedings may be brought to declare a child free from the custody and control of one or both parents and terminate the parents rights. (§ 7800 et seq., § 7802.) The one at issue here is found in section 7822. It provides as follows, in relevant part: "(a) A proceeding under this part may be brought where the 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 childs support or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child. [¶] (b) 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."
When a child has been removed from the custody of a parent by judicial action, the weight of authority holds the "leaving" requirement still may be satisfied by evidence of parental inaction. In other words, a parent may be found to have "left" a child in the custody and control of another even after the child is taken from the parent by judicial action. (See, e.g., In re Amy A. (2005) 132 Cal.App.4th 63, 70 [no contact for two years after sole custody awarded to mother in divorce, several visits over next six months, then no contact for two years]; In re Conrich (1963) 221 Cal.App.2d 662, 667-668 [no support or communication for twenty one months after wardship established]; In re Barton (1959) 168 Cal.App.2d 584, 589-590 [no support or communication for thirteen months after guardianship established]; In re Maxwell (1953) 117 Cal.App.2d 156, 165 [no support or communication for three years after wardship established]; Compare with In re Jacklyn F. (2003) 114 Cal.App.4th 747 [court said parental inaction cannot satisfy statutory requirement that child be left with another, but reversed termination judgment because evidence showed parent maintained contact with child by sending "stacks" of letters]; In re Jones (1955) 131 Cal.App.2d 831, 834, 836 [dismissal of petition to terminate parental rights of mother affirmed where custody given to father, court suggesting that record sufficiently showed mothers subsequent interest in child and saying there was no abandonment because mother did not voluntarily leave child in fathers custody].)
The rationale for the prevailing rule was first explained in In re Maxwell, supra, 117 Cal.App.2d at p. 165. There, a child was declared a ward of the court and taken from her mothers custody. During the ensuing three years, the mother made no effort to support the child or communicate with her, and expressed no concern for the childs whereabouts. The court held the evidence supported a judgment terminating the mothers parental rights. "[It] seems obvious that where, after a wardship proceeding, there is no attempt to support or to communicate with the child for a period of over three years, there has been an `abandonment by such nonaction within the meaning of section 701, subdivision `(a) of the Welfare and Institutions Code. Regardless of how the child has been taken from her parent, by such nonaction that has continued for at least a year. . . the parent may be deemed by the trial court to have abandoned the child. In such a case, the child has been `left . . . in the care and custody of another without any provision for his support, or without communication from . . . his parents, for a period of one year within the meaning of the section."
Maxwell arose under then-Welfare and Institutions Code section 701, which provided as follows. "`The jurisdiction of the juvenile court extends also to any person who should be declared free from the custody and control of either or both of his parents. The words `person who should be declared free from the custody and control of either or both of his parents shall include any person under the age of 21 years who comes within any of the following descriptions: [¶] (a) Who has been left by either or both of his parents in the care and custody of another without any provision for his support, or without communication from either or both of his parents, for the period of one year with the intent on the part of such parent or parents to abandon such person. Such failure to provide, or such failure to communicate for the period of one year, shall be presumptive evidence of the intend to abandon.. . . ." (In re Maxwell, supra, 117 Cal.App.2d at p. 162.)
We find this analysis persuasive. It seems to us abandonment should always be a factual question and should be determined by consideration of all the facts of the case.
Here, Anthony allowed Tatiana to remain in the custody of the B.s for more than six months without making any effort to contribute to her support. That raised a presumption that he intended to abandon the child. Anthony testified he did not intend to abandon Tatiana, but in view of the abandonment finding we must presume the trial court did not believe him. That is sufficient evidence to support the judgment.
Anthony argues his failure to support Tatiana after being notified of the guardianship proceeding is insufficient parental inaction to satisfy the "leaving" requirement of section 7822, subdivision (a). We disagree.
The argument relies on In re Jacklyn F., supra, 114 Cal.App.4th 747, the recent case rejecting the rule that "leaving" may be shown by parental inaction following judicial removal of a child. The facts were as follows. In December 1998, grandparents were appointed guardians of a child over the objections of the mother. In August 2002, the grandparents petitioned to terminate the mothers parental rights and adopt the child. The grandmother testified the mother had visited only once since the guardianship order. The childs therapist testified she had received numerous letters from the mother to the child, whom she saw only intermittently, so sometimes she had accumulated "`a stack of letters to turn over" to the grandparents. (Id. at p. 752.) The mother testified she had been told that she was not allowed to contact the child except by mail. The trial court found the letters were but a token effort to communicate, there was no evidence of any attempt to support the child, and it terminated the mothers parental rights.
The court concluded "[w]e do not agree that evidence of a failure to communicate or support . . . can, in itself, satisfy the separate statutory requirement that the child be `left for a prescribed period of time." It noted section 7822, subdivision (a) provides parental rights may be terminated when a child has been "left" by a parent in the care of another for six months and there has been no support or communication. It reasoned there must be a leaving in addition to failure to support or communicate, otherwise the word "left" would be meaningless. But, it added, "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 . . . ." (In re Jacklyn F., supra, 114 Cal.App.4th at pp. 755-756.) The court then based its holding on a narrower ground: "We conclude that [the mothers] conduct following the granting of the guardianship — which included sending `stacks of letters to the minor but failing to visit her — did not constitute `parental nonaction amounting to a leaving."
Jacklyn F. is readily distinguishable. There is nothing in the instant case akin to "stacks of letters" showing parental communication with a child placed in a guardianship. Anthonys rights were terminated for failure to support, not failure to communicate (which the court found inapplicable because of the restraining order prohibiting him from visiting Tatiana). There no evidence that he made any attempt to contribute to Tatianas support during the six months preceding the B.s petition to terminate his parental rights. It was only after the March 2005 petition was filed that Anthony sent his attorney $200 to forward to the B.s, but by then it made no difference legally, since six months of nonsupport was shown.
We note as well that Jacklyn F. said a leaving might be found despite court intervention in other circumstances. Assuming for the sake of argument that we were to agree with the courts interpretation of section 7822 — a matter on which we express no opinion — this case falls within the envisioned exception. And we observe that the only published decision citing Jacklyn F. distinguished the case on the facts, concluding that a divorced father "left" his child with the mother, who had been awarded custody in the divorce, when he made no attempt to contact the child for two years. (In re Amy A., supra, 132 Cal.App.4th 63, 70.) So Jacklyn F. does not help Anthony.
Anthony argues he was never asked to support Tatiana, and failure to support without a request "does not necessarily" show abandonment of a child. Perhaps. But failure to support, even without a request, is evidence of intent to abandon — indeed, presumptive evidence. It was for the trial court to decide the weight to give that fact, and nonsupport is sufficient to sustain the finding that Anthony intended to abandon Tatiana.
Anthony also contends financial inability excuses failure to support, he was indigent, and no evidence was offered to show he had the ability to provide support. We are not persuaded. Anthony fails to provide any record citation to show this argument was raised below, and a new argument may not be raised for the first time on appeal. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) Moreover, it was Anthonys burden to offer evidence of inability to support, not the other way around, since failure to provide support is presumptive evidence of intent to abandon. (§ 7822, subd. (b).) So the evidence supports the judgment terminating Anthonys parental rights.
II
Amanda argues the evidence is insufficient to show she intended to abandon Tatiana, for several reasons. We examine each in turn and conclude none have merit.
Amanda contends there can be no abandonment when a parent relinquishes a child under coercion, and Tatiana was removed from her custody through coercion by the DCFS and the B.s. She is mistaken on both the law and the facts.
The legal argument cites In re Jones, supra, 131 Cal.App.2d 831 for the proposition that a child relinquished under coercion is not abandoned. But the case is distinguishable. For one thing, the court there affirmed the dismissal of a petition to terminate a mothers parental rights. The facts are not set out in detail, and the decision is ambiguous. At one point, the court suggested the evidence showed the mother had communicated with the child after custody was awarded to the father in a divorce. (Id. at p. 834.) Later, it said there was no abandonment because the mother had not voluntarily left the child in the care of the father. (Id. at p. 836.) Since sufficient communication to negate an intent to abandon is a question of fact, and the Jones facts are unclear, the case is of little guidance in the instant matter where the trial court found Amanda did intend to abandon Tatiana. To the extent the decision may be read as saying that a child once removed by judicial action can never be abandoned, we just disagree.
The coercion claim is not supported by the record. Amanda testified that she agreed to the guardianship, and she never suggested she had been pressured into doing so by DCFS.
The coercion argument regarding the B.s is that they discouraged Amanda from visiting Tatiana, and at some point prohibited her from seeing the child. But here Amanda relies on her own testimony. She ignores the evidence offered by Gina, who testified she never told Amanda not to call Tatiana, and she never said Amanda could no longer visit the child. On a challenge to the sufficiency of the evidence, an appellant must lay out the contrary evidence and show why it is insufficient. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Amanda makes no effort to do so, and reliance on her own favorable testimony does not satisfy this rule.
Amanda argues her version of conversations with Timothy must be believed, because Timothy did not testify at trial and Gina was "unable" to testify about conversations between Amanda and Timothy. The latter sounds like a hearsay argument. But Amanda has apparently failed to read the record very carefully. It shows Timothy was the second witness called by the B.s, and it also shows no hearsay (or any other) objection was made when Gina testified to overhearing a conversation between Timothy and Amanda.
Next, Amanda argues there can be no abandonment following judicial removal of a child — as a matter of law — relying on In re Jacklyn F., supra, 114 Cal.App.4th 747. Again, we must disagree.
The decision is distinguishable from Amandas case, as it was from Anthonys. To refresh the recollection of the reader, Jacklyn F. held that parental inaction was not shown where a mother sent "stacks" of letters to her daughter who had been placed with a guardian. (See Part I, ante, pp. 7-8.) Here, on the other hand, the evidence (viewed most favorably to the B.s, as it must be) shows Amanda had no contact with Tatiana between December 2004 and October 2005, save for one call and sending one birthday gift. That is far less than the mothers efforts at communicating with her child in Jacklyn F. We are satisfied that Amandas conduct amounts to parental inaction, or at most "only token efforts to . . . communicate with the child" upon which "the court may declare the child abandoned." (§ 7822, subd. (b).) And like Anthonys case, the facts of Amandas case also fall within Jacklyn F.s exception for circumstances where it may be said that a parent left a child with another despite prior removal of the child from the parents custody by court order. Jacklyn F. does not require reversal of the order terminating Amandas parental rights.
Finally, Amanda argues there is no abandonment where a parent arranges temporary care for a child during a period when the parent is unable to care for the child. But that is not the law.
Two cases cited for this proposition are inapt. In re Monica C. (1994) 31 Cal.App.4th 296, 305 considered an issue under Welfare and Institutions Code section 300, subdivision (g). That statute provides that a child of an incarcerated parent may be declared a dependent child if the parent is unable to make adequate arrangements for care during his or her incarceration. Monica C. has no bearing on the instant matter, which concerns the proper interpretation of section 7822, not Welfare and Institutions Code section 300. Guardianship of Marshall (1954) 124 Cal.App.2d 807, 810-811, held there was ample evidence that a mother had abandoned her child, which supported the denial of her petition to terminate the guardianship of the childs stepmother. If anything, Marshall supports the instant decision, where there is also sufficient evidence to support the finding that Amanda abandoned Tatiana. The judgment terminating Amandas parental rights is supported by the evidence.
Since the evidence supports the separate judgments terminating the parental rights of Anthony T. and Amanda B., the judgments appealed from must be affirmed.
We Concur:
SILLS, P. J.
OLEARY, J.