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In re Victoria G.

California Court of Appeals, Fourth District, First Division
Jul 29, 2008
No. D052597 (Cal. Ct. App. Jul. 29, 2008)

Opinion


In re VICTORIA G., a Minor. BRUCE R., Petitioner and Respondent, v. KIRK G., Objector and Appellant. D052597 California Court of Appeal, Fourth District, First Division July 29, 2008

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County No. A54565, Susan D. Huguenor, Judge.

NARES, Acting P. J.

Kirk G. appeals an order terminating his parental rights to his daughter, Victoria G., on the basis of abandonment. (Fam. Code, § 7822.) He contends the evidence was insufficient to show he actually deserted or intended to sever entirely all of his parental obligations to Victoria. We affirm.

Statutory references are to the Family Code.

FACTUAL AND PROCEDURAL BACKGROUND

On September 12, 2007, Bruce R., Victoria's stepfather, petitioned to free Victoria from Kirk's custody and control. The petition was filed as a companion to a stepparent adoption and alleged Kirk had not communicated with Victoria or made any provision for her support for more than one year.

The San Diego County Health and Human Services social worker reported Kirk and Victoria's mother, Nancy R., were married in 2000, and Victoria was born in December 2002. In September 2003 Kirk left San Diego for Northern California to look for work. Nancy and Victoria joined him in October, but the couple soon separated, and Nancy and Victoria returned to the home of the paternal great-grandmother in San Diego, where they had been living before going to Northern California.

Nancy filed for divorce in early 2004. Shortly thereafter, Kirk had a two-week visit with Victoria. In June 2004 Kirk and Nancy divorced. Nancy was granted physical custody, she and Kirk were granted joint legal custody, and Kirk was ordered to pay child support of $500 per month. In December 2004 Kirk had a one-week visit with Victoria. In December 2005 he traveled to San Diego for a three-week visit. It was his last visit with Victoria.

Nancy married Bruce in October 2006. Nancy said that about that time she asked Kirk to stop contacting them if he was not going to participate in Victoria's life, and he did not call again until February 2007, when he called to announce the birth of his new child.

Five-year-old Victoria told the social worker she remembers Kirk, but "he doesn't visit me anymore." The social worker said Victoria appeared to have a good relationship with Bruce and referred to him as "Daddy."

Kirk opposed the petition to terminate his parental rights. He reported he had sent cards, gifts and letters to Victoria and maintained regular contact, but after the visit in December 2005, he had difficulty reaching Victoria in that he would call Nancy and leave messages, but she would not call him back. He said that in early 2006, Nancy and Victoria moved from the paternal great-grandmother's home, and he did not have their new address. In December 2006 Nancy said she would no longer allow contact because he was not paying child support. He reported that in the summer of 2007, she told him she would waive child support if he would agree to a stepparent adoption, but he refused. He said he had been unable to provide financial support for Victoria because of his medical problems and unemployment, but in 2004 he had paid child support for two and one-half months. The social worker recommended the petition be granted.

At a hearing on the petition on February 1, 2008, Kirk testified that under the terms of the 2004 divorce settlement agreement he was to have eight weeks of visitation with Victoria each year. He said he had a two-week visit in December 2004, a visit in February 2005 and a three-week visit in December 2005, but no other visits. He said he called Nancy many times, but she rarely returned his calls. He said he had been unemployed about 90 percent of the time; he first had to leave work because of blood clots in his leg and since then he had had only day jobs. He testified he seldom drank, and admitted that under the terms of the marital settlement he agreed not to use alcohol and to attend two Alcoholics Anonymous meetings each week and obtain a sponsor and proof of attendance. He acknowledged he had not attempted to modify the child support order through court proceedings and agreed that the paternal great-grandmother saw Victoria on a regular basis and his family knew her address.

The court granted the petition under section 7822 by clear and convincing evidence and found it was in Victoria's best interests to be freed from Kirk's custody and control.

DISCUSSION

Kirk contends the evidence was insufficient to show he actually deserted or intended to sever entirely all of his parental obligations to Victoria. He asserts there is not substantial evidence to support a finding he intended to abandon her. He argues the evidence does not support a threshold finding that Victoria was "left" in Nancy's care and custody within the meaning of section 7822 because it was Nancy, not he, who took Victoria several hundred miles away. He claims he exercised his right to visitation until Nancy refused contact because he had not paid child support. He attempted to maintain telephone contact, but she instructed him not to call anymore and then moved and did not provide him with contact information.

I. Applicable Legal Principles

Section 7822 provides in part:

"(a) A proceeding under this part may be brought . . . [¶] (1) [Where t]he child has been left . . . [¶]. . . [¶] (3) [By o]ne 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.

"(b) 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 . . . ."

Intent to abandon is a question of fact that may be found by objectively measuring the parent's conduct. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) " ' " 'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.' " [Citations.]' " (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) "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., at p. 754.) "Case law consistently focuses on the voluntary nature of a parent's abandonment of the parental role, rather than on physical desertion by the parent." (In re Amy A. (2005) 132 Cal.App.4th 63, 69.)

In determining whether a parent intended to abandon his or her child, the juvenile 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. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212 ; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) To satisfy the terms of the statute, the Legislature meant an intent to abandon the child during the period of time specified in the statute, rather than an intent to abandon the child permanently. (In re Daniel M. (1993) 16Cal.App.4th 878, 883.) "Although a parent's failure to contribute to his child's support absent demand does not necessarily show abandonment, such failure coupled with failure to communicate, may do so." (In re Cheryl E. (1984) 161 Cal.App.3d 587, 605.)

The juvenile court's finding of an intent to abandon must be supported by clear and convincing evidence. (§ 7821.) "However '[t]hat standard is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.' [Citation.]" (In re B. J. B., supra, 185 Cal.App.3d at p. 1211.) "All evidence most favorable to the respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact." (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 931.)

II. Analysis

Substantial evidence supports a finding that Kirk voluntary left Victoria in Nancy's care and custody with an intent to abandon her within the meaning of the statute. During a period of more than three years, between the June 2004 divorce and the filing of the petition in September 2007, Kirk visited Virginia only three times, for two weeks in the spring of 2004, one week in December 2004 and three weeks in December 2005. After that time, he did not exercise his right to visit his daughter.

Kirk argues that after early 2006, when Nancy and Victoria moved from the paternal great-grandmother's home, he did not know where they were living. However, Nancy did not hide Victoria from him. At the hearing, he acknowledged the paternal great-grandmother saw them frequently and his family knew where they were living. However, Kirk made no effort to visit Victoria.

Kirk acknowledged that under the terms of the marital settlement in June 2004, he had agreed to pay $500 per month in child support, but he paid no support in 2005, 2006 or 2007. The attorney representing Bruce calculated that at the time of the hearing, Kirk owed $23,500 in child support. Kirk acknowledged that he had never gone to court to try to enforce his visitation rights or to modify the child support order.

Kirk's failure to support Victoria financially while making only token efforts to communicate with her after December 2005 supports a finding he had left her with an intent to abandon her within the meaning of the statute. Substantial evidence supports the court's findings under section 7822 by clear and convincing evidence.

DISPOSITION

The order is affirmed.

WE CONCUR: McINTYRE, J., AARON, J.


Summaries of

In re Victoria G.

California Court of Appeals, Fourth District, First Division
Jul 29, 2008
No. D052597 (Cal. Ct. App. Jul. 29, 2008)
Case details for

In re Victoria G.

Case Details

Full title:In re VICTORIA G., a Minor. BRUCE R., Petitioner and Respondent, v. KIRK…

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

Date published: Jul 29, 2008

Citations

No. D052597 (Cal. Ct. App. Jul. 29, 2008)