Opinion
D070957
02-24-2017
In re K.N., a Minor. K.P. et al., Petitioners and Respondents, v. KYLE N., Objector and Appellant.
Marisa L.D. Conroy, under appointment by the Court of Appeal, for Objector and Appellant. No appearance by Petitioners and Respondents. Terence M. Chucas, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. A60594) APPEAL from a judgment of the Superior Court of San Diego County, Edlene C. McKenzie, Commissioner. Reversed. Marisa L.D. Conroy, under appointment by the Court of Appeal, for Objector and Appellant. No appearance by Petitioners and Respondents. Terence M. Chucas, under appointment by the Court of Appeal, for Minor.
Kyle N. appeals a judgment declaring his minor son, K.N., free from his custody and control under Family Code section 7822. That statute provides that a petition to free a child from a parent's custody and control may be granted where "[o]ne parent has left the child 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)(3).) Kyle contends the evidence does not support the trial court's finding that he intended to abandon K.N. within the meaning of section 7822. Kyle further contends termination of his parental rights is not in K.N.'s best interests.
All further statutory references are to the Family Code. --------
We conclude there is no substantial evidence to support a finding that Kyle intended to abandon K.N. Thus, we reverse the judgment and need not consider whether termination of Kyle's parental rights was in K.N.'s best interests.
FACTUAL AND PROCEDURAL BACKGROUND
Kyle and K.P. (Mother) started living together in 2005. In 2007, Mother gave birth to K.N. Kyle was present for K.N.'s birth and his name appears on K.N.'s birth certificate. Kyle lived with K.N. and Mother for approximately one year before his relationship with Mother ended. Mother and K.N. moved in with K.N.'s maternal grandmother. Kyle continued to see K.N. regularly and provided him financial support.
In 2010, Kyle was incarcerated. K.N. was approximately two and a half years old at the time. According to Kyle, his family brought K.N. to visit him five or six times in prison, with the last visit in June 2010. Kyle spoke to K.N. on the phone three or four times, but the calls stopped in 2013. After his incarceration, Kyle ceased financially supporting K.N. Kyle's relatives were willing to provide things for K.N. However, Mother never requested assistance.
Kyle wrote letters to Mother and K.N, but never received a response. Thereafter, Kyle started sending letters for K.N. to K.N.'s maternal aunt. Mother did not have a relationship with the maternal aunt and K.N. never received Kyle's letters sent to the maternal aunt's home.
From the time Kyle was incarcerated to August 2016, he also sent letters for K.N. to K.N.'s paternal grandmother. Kyle estimated that he wrote K.N. "twice every two months, [or] three months." The paternal grandmother did not give Kyle's letters to K.N. because she did not know how to contact K.N. and did not have his address. Kyle also sent gifts for K.N. to K.N.'s paternal aunt. K.N. did not receive those gifts.
During his incarceration, Kyle participated in Fathers Behind Bars and Get On the Bus programs. The prison provided free bus transportation for K.N. to visit Kyle with a relative if Mother gave permission. Mother refused to sign the paperwork necessary for K.N. to utilize the bus service.
In 2014, Mother married D.P. (Stepfather). Since that time, Stepfather has financially supported K.N. In August 2015, Mother and Stepfather filed a petition under section 7822 to free K.N. from Kyle's custody and control so that Stepfather could adopt K.N. Mother later requested to continue the hearing on the matter until Stepfather returned from a deployment. Kyle opposed the petition.
In 2016, Kyle sent five or six letters for K.N. to K.N.'s maternal grandmother. The maternal grandmother had lived in the same home for 14 years. Kyle had known that address since at least 2012. Kyle also called the maternal grandmother's home twice in the year after Mother and Stepfather filed their section 7822 petition. Kyle did not speak to K.N. during those calls because Kyle called at times when K.N. was at school.
In August 2016, the trial court held a hearing on Mother and Stepfather's petition. After considering the evidence, the trial court granted the petition terminating Kyle's parental rights under section 7822. The trial court recognized that Kyle wrote letters to K.N. during Kyle's incarceration. However, the court found it significant that Kyle did not utilize the judicial system to secure his parental rights during his incarceration. The court noted that Kyle had access to a law library and had even written an appeal in his criminal case.
The trial court went on to note that Kyle knew where the maternal grandmother lived because she had not moved in 14 years. Further, Kyle had not provided support for K.N. during Kyle's incarceration. Ultimately, the court concluded that Kyle's efforts over six years to contact K.N. were merely token efforts. The trial court determined that granting the petition was in K.N.'s best interests because he needed stability and "a man in his life that's going to be present for him on a daily basis who can support him and love him and be there for him."
STANDARD OF REVIEW
We apply a substantial evidence standard of review to the trial court's findings. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1211.) We apply this standard 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.)
DISCUSSION
Kyle challenges the sufficiency of the evidence supporting the trial court's findings that he intended to abandon K.N. and that termination of his parental rights was in K.N.'s best interests. We conclude the evidence did not support the trial court's finding of abandonment. Thus, we need not consider whether termination of Kyle's parental rights was in K.N.'s best interests. (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 933 ["Absent intent on the part of the parents to abandon the child, . . . the best interests and welfare criteria are simply not applicable."].)
A
General Legal Principles
Section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009 (Allison C.); § 7802.) "A declaration of freedom from parental custody and control . . . terminates all parental rights and responsibilities with regard to the child." (§ 7803.)
A court may declare a child free from parental custody and control if the parent has abandoned the child. (§ 7822; Allison C., supra, 164 Cal.App.4th at p. 1010.) Abandonment may occur when "[o]ne parent has left the child 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)(3).)
The failure to provide support or failure to communicate for a one-year period is presumptive evidence of the intent to abandon. (§ 7822, subd. (b).) Token efforts to support or communicate with the child will not overcome this presumption. (§ 7822, subd. (b); In re A.B. (2016) 2 Cal.App.5th 912, 923 (A.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.B., supra, 2 Cal.App.5th at p. 922 [the statutory period in section 7822, subdivision (a)(3) is not limited to the one year immediately preceding the filing of the petition].) However, "[t]he 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 (Jacklyn F.).)
B
Kyle "Left" K.N. Within the Meaning of Section 7822
As a threshold matter, we must consider whether Kyle "left" K.N. within the meaning of section 7822. (Jacklyn F., supra, 114 Cal.App.4th at p. 754.) A parent " 'leaves' " a child by voluntarily surrendering the child to another person's care and custody. (In re Amy A. (2005) 132 Cal.App.4th 63, 69 [existence of a judicial order placing custody of 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.)
A parent's incarceration does not prevent the court from finding that the parent "left" or voluntarily surrendered his or her child to the care of the other parent. (Allison C., supra, 164 Cal.App.4th at pp. 1011-1012.) For example, in Allison C., the court concluded that the father's actions leading to his incarceration for domestic violence, burglary, and driving under the influence were voluntary and supported a finding that he "left" his daughter in the mother's care and custody. (Ibid.)
Here, Kyle argues his incarceration did not result in him "leaving" K.N. within the meaning of section 7822 because Kyle regularly wrote to K.N., sent gifts to K.N., enrolled in prison programs for parents, and requested that K.N. be allowed to visit him in custody. However, these factors pertain to whether Kyle failed to communicate with K.N. and intended to abandon him, not whether Kyle "left" K.N. In determining whether Kyle "left" K.N., we must focus on whether Kyle voluntarily surrendered custody and care to Mother. (Allison C., supra, 164 Cal.App.4th at p. 1011.)
Kyle was incarcerated in 2010 when K.N. was approximately two and a half years old. As a result of his incarceration, Kyle has not seen K.N. for more than six years. Like the father in Allison C., the actions underlying Kyle's incarceration were voluntary. He does not argue otherwise. Due to his illegal activities and subsequent incarceration, Kyle voluntarily abdicated his parental role and surrendered care and custody of K.N. to Mother. (Allison C., supra, 164 Cal.App.4th at p. 1012 [" 'being incarcerated does not, in and of itself, provide a legal defense to abandonment of children' "].) Thus, substantial evidence supports a finding that Kyle "left" K.N. within the meaning of section 7822.
C
The Evidence Did Not Support a Finding of Abandonment
Having found that Kyle "left" K.N. within the meaning of section 7822, we next examine whether substantial evidence supported a finding that Kyle failed to support or communicate with K.N. for a period of one year with the intent to abandon him. (§ 7822, subd. (a)(3).) It is undisputed that Kyle supported K.N. until Kyle's incarceration, but stopped contributing financially thereafter. Kyle requested that his family assist with K.N.'s needs, but Mother never demanded help. A parent's failure to support a child when the parent does not have the ability to do so and no demand has been made does not, by itself, prove intent to abandon. (In re Baby Boy M. (1990) 221 Cal.App.3d 475, 482; In re T. M. R. (1974) 41 Cal.App.3d 694, 698, fn. 2 (T.M.R.) [mother's failure to support her children was not an issue because it was undisputed that she was financially unable to do so during her incarceration]; Adoption of Oukes (1971) 14 Cal.App.3d 459, 467 ["[f]inancial inability may excuse the failure to send any funds for support of the children"].) Accordingly, Kyle's failure to financially provide for K.N. does not constitute substantial evidence supporting a finding that Kyle intended to abandon K.N.
Turning to the issue of whether Kyle failed to communicate with K.N. for one year, we conclude that there is no substantial evidence to support the trial court's finding that Kyle made only "token" efforts to communicate with his child. T.M.R. is instructive on this point. In that case, the trial court had found the mother of two minor children made only "token" efforts to communicate with them during her incarceration. (T.M.R., supra, 41 Cal.App.3d at pp. 697-698.) The uncontradicted evidence showed that the mother had written to her children at least twice per month. (Id. at p. 698.) The Court of Appeal noted that communications that take place only after legal action is threatened may be found to be token only. (Ibid.) However, the mother in that case had "communicated with her children on a frequent, regular and continuing basis, commencing such communications immediately after she was deprived of their custody and long prior to the commencement of [proceedings to declare the children free from her custody and control]." (Ibid.) Thus, the court concluded there was "no evidentiary support for the trial court's finding that the defendant abandoned her children by failing to communicate with them." (Id. at pp. 699-700.)
Here, the evidence showed that after his incarceration, Kyle wrote to K.N. and Mother, but did not receive a response. Thus, he started sending letters for K.N. to the maternal aunt. Further, during the entire time of his incarceration, Kyle had sent letters for K.N. to the paternal grandmother. Kyle wrote to K.N. twice every two or three months. Kyle also sent gifts for K.N. to the paternal aunt. K.N. did not receive the letters or gifts sent to the maternal aunt, maternal grandmother or paternal aunt.
Kyle did not send letters for K.N. to the maternal grandmother until after commencement of section 7822 proceedings in this case. However, even if he had done so, the fate of letters to the maternal grandmother may have been the same as Kyle's other letters that did not reach K.N. The maternal grandmother testified that she still had the five or six letters that she received for K.N. from Kyle in the year before the proceedings in this case. The letters had not been shared with K.N.
Based on the record before us, Kyle's efforts to communicate with K.N. were more than mere "token" efforts. (See T.M.R., supra, 41 Cal.App.3d at pp. 698-699.) Although Kyle's letters did not reach K.N., Kyle wrote to K.N. nearly every month for more than six years and sent his communications to multiple addresses. A parent's efforts to send letters to his or her child that do not reach the child do not constitute " 'parental nonaction.' " (Jacklyn F., supra, 114 Cal.App.4th at pp. 752, 756 [concluding mother's efforts of sending "stacks" of letters for her child to her child's therapist did not amount to "leaving" within the meaning of section 7822 even though the letters never reached the child].) "To characterize [Kyle's] continuing communications to [his] child[] as merely 'token' would be to engage in pure surmise or speculation." (T.M.R., at p. 699.)
Moreover, each element of section 7822 is qualified with the provision that the parent's actions must have been done with the intent to abandon the child. (§ 7822, subd. (a)(2); In re Cattalini (1946) 72 Cal.App.2d 662, 668.) Thus, "[t]he crucial issue here then was whether or not the alleged acts of [Kyle] were committed by him 'with the intent to abandon' [K.N.]." (In re Cattalini, at p. 668.) The uncontradicted evidence established that Kyle wrote to K.N. regularly and on a continuing basis during Kyle's incarceration. Based on this evidence, combined with Kyle's efforts to have K.N. visit him and Kyle's participation in prison programs for fathers, we find no evidentiary support for a finding that Kyle intended to abandon K.N. by failing to communicate with him.
Lastly, we find the evidence does not support the trial court's conclusion that Kyle intended to abandon his son by failing to utilize the judicial system to obtain visitation or contact with his son. The parties have not cited and we have not located any authority finding that a parent surrenders his or her parental rights by failing to proactively obtain a judicial order securing those rights before they are subject to a court order limiting them. In contrast, numerous cases hold that a parent can surrender his or her parental role by failing to act after a judicial order limits the parent's rights. (In re Amy A., supra, 132 Cal.App.4th at p. 70 [father's failure to appear in divorce proceedings and lack of effort to modify custody order supported finding that father voluntarily surrendered his parental role]; In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 505 [father voluntarily surrendered his parental role by failing to "oppose the relief sought by mother on the issues of custody, visitation, and child support" and failing to seek modification of court order over three years].) In this case, however, there was no judicial order or decree in place limiting Kyle's parental rights. Prior to the instant proceedings, Mother had never sought to limit Kyle's parental role. When Kyle received notice of Mother and Stepfather's section 7822 petition, he immediately filed a motion requesting that he be transported to the hearing, that an attorney be appointed for him, and that the hearing be rescheduled to allow him to subpoena witnesses, gather evidence, and to prepare his opposition. Kyle opposed the petition and strongly disagreed with termination of his parental rights.
This is not a situation where a parent fails to act in the face of a judicial order limiting his rights. Rather, when his rights were in jeopardy, Kyle immediately responded. While we acknowledge that it would have been wise for Kyle to seek judicial intervention when Mother refused to allow K.N. to visit him, Kyle's inaction did not establish an intent to abandon his child. Even after Mother declined to allow K.N. to utilize the prison's bus service to visit Kyle, Kyle continued his efforts to communicate with K.N. Further, Kyle understood Mother's position that she did not want K.N. as a young child to be exposed to the prison system.
Based on the foregoing, we conclude substantial evidence did not support the trial court's finding that Kyle abandoned K.N. Involuntary termination of parental rights is "a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment." (T.M.R., supra, 41 Cal.App.3d at p. 703.) This evidence in this case does not warrant that remedy. Accordingly, we reverse the trial court's judgment declaring K.N. free from Kyle's custody and control under section 7822.
DISPOSITION
The judgment is reversed.
/s/_________
IRION, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
HUFFMAN, J.