Opinion
F064928
01-31-2013
In re A.F., a Minor. M.F., Petitioner and Respondent, v. I.S., Objector and Appellant.
Beth A. Melvin, under appointment by the Court of Appeal, for Objector and Appellant. Roger R. Grass for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. S-1501-AT-3101)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill, Judge.
Beth A. Melvin, under appointment by the Court of Appeal, for Objector and Appellant.
Roger R. Grass for Petitioner and Respondent.
Appellant I.S. (the father) contends that the trial court erred when it terminated his parental rights based on Family Code section 7822, subdivision (a), which required a determination that he left his son A.F. in the care of M.F. (the mother) for one year with intent to abandon and either without providing support or without communicating. We agree with the father that the evidence is insufficient to support the judgment. The court ruled orally that the evidence did not establish a failure to provide support with intent to abandon, but it signed a party-prepared judgment stating failure to support with intent to abandon as the sole ground for the decision. The court also ruled orally that the father could have made more diligent efforts to communicate and implicitly found that he failed to communicate with a subjective intent to abandon. The latter finding could not reasonably be made, however, since it was undisputed that the father made numerous attempts to communicate during the period in question and the mother admitted she unilaterally terminated an ongoing visitation arrangement and then concealed her whereabouts and telephone number from the father. Section 7822 is not designed to empower one parent to terminate the parental rights of the other by means of evading the other's efforts to communicate. We reverse the judgment.
Subsequent statutory references are to the Family Code unless otherwise noted.
FACTUAL AND PROCEDURAL HISTORIES
The mother filed a petition pursuant to section 7822 in Kern County Superior Court on November 17, 2011. The petition alleged that the father had left A.F. in the mother's care and custody without communication or support and with intent to abandon since February 2008.
The court notified Kern County Family Court Services. A Family Court Services investigator investigated the matter and issued a report. According to the report, A.F. was born on February 1, 2005, in Watsonville. The father was 18 years old at that time and the mother was 20. At birth, A.F. was given the same first name as his father. The mother later caused the name to be changed legally to A.
The father, mother, and A.F. lived together in the mother's parents' home in Watsonville from the time of A.F.'s birth until May 2005. The mother's parents then moved to Bakersfield and the father, mother, and A.F. moved with them. The young family lived there until May 2006, when the mother and father decided to split up. The father returned to Watsonville to live near his parents. The mother and father agreed that A.F. would live primarily with his mother in Bakersfield and would visit with the father one week each month in Watsonville.
This arrangement continued until February 2008. The mother then refused to agree to further visits in Watsonville, claiming A.F. told her the father's girlfriend had locked him in the bathroom as a form of discipline. The father denied this happened. The mother told the father he could have visits with A.F. by renting a hotel room in Bakersfield on weekends, but the father said he could not afford this as he was on disability and unable to work and did not own a car. The mother brought A.F. to Watsonville for two visits after this, the final visit taking place in July 2008.
The mother told the investigator that the father had had ample opportunities to continue his relationship with A.F. since July 2008 but had failed to take advantage of them. The mother admitted, however, that she had moved and changed her own telephone number and made a deliberate decision not to provide the new information to the father. She said she had made this decision because the father used to become angry and say things that offended her during telephone conversations. The mother moved out of her parents' home in August 2009, but she and A.F. moved back in with them in June 2010.
According to the mother, the father's parents visited A.F. on certain occasions, but he did not go with them. On the day A.F.'s name was changed, March 15, 2011, the mother saw the father at the court in Bakersfield, but the father did not inquire about visitation. When the investigator asked the father why not, he said he feared others would think he was harassing the mother if he brought up that subject. The father's mother told the investigator that she and the father's father also came to Bakersfield that day. She said the father contacted the mother's father to try to arrange a visit with A.F. but was told that A.F. was in school and would be unavailable. Later that day, however, the father's parents and sister saw A.F. with the mother at a Wal-Mart and arranged to visit A.F. at the mother's parents' house the same day. The father had already left Bakersfield by that time.
The mother said the father always had an address and telephone number to contact her parents, but that he called them infrequently and did not ask to see A.F. when he did.
The mother was engaged to be married to J.H. He had been A.F.'s primary father figure since 2009 and said he was willing to adopt A.F.
The father told the investigator he never intended to abandon A.F. and opposed the termination of his parental rights. He said he had not visited A.F. since July 2008 because the mother refused to allow visits in Watsonville; the mother withheld her address and telephone number; he had been on disability for several years; his income was small; he had no car; and his driver's license was suspended from 2009 to 2011.
The father denied that the mother had made her parents available to him as a conduit for communication. In 2009, the mother's parents changed their telephone numbers and neither they nor the mother provided him with the new numbers. The father went to the mother's parents' home in Bakersfield to speak to them. They told him the mother had moved out of their house and they refused to tell him where she had gone. The father obtained a telephone number for the mother's father only when a relative of the mother in Watsonville gave it to him.
The father said that, after this, he called the mother's father four to six times per month. He always asked to speak to A.F., but the mother's father allowed him to do so only once or twice per month because he was afraid the mother would find out and be angry. The father said the mother's father was the only person who allowed him to speak to A.F. At some point, the mother's father stopped taking the father's calls.
The investigator reviewed records for the mother's father's cell phone from January 21, 2011, to November 21, 2011. He found a total of four calls from the father's number for this period, not four to six per month. The father said he often called from from various phones other than his own.
The mother's father told the investigator the father called him only two or three times per year and never asked to see A.F. There were two or three occasions over the last few years when A.F. talked with the father during these calls, but this happened at the mother's father's suggestion. Once, the father said he would send a gift and the mother's father said they would be happy to receive it, but no gift ever arrived. The father did call frequently after the section 7822 petition was filed.
The mother told the investigator that the father had never sent letters, cards, or gifts to A.F. The father did not deny this, but said the reason he did not send gifts for Christmas was that the mother's parents were Jehovah's Witnesses.
The investigator asked the father why the father never attempted to obtain court-ordered visitation rights. The father said he did not understand the court process. He admitted that he never attempted to learn about the process.
A.F. told the investigator he knew his father's name was I.S., though he did not know what he looked like and did not remember spending time with him when he was younger. He did say he had spoken to I.S. recently by telephone and enjoyed the conversation. He said I.S. was his old father and J.H. was his new father. A.F. at first said he would not mind if I.S.'s parental rights were terminated, but later, when told that this would mean he might have no more contact with him, he said he would be sad if that happened and he would like to have contact with I.S. and get to know him. A.F. said he would not mind having visits with I.S. in Watsonville or Bakersfield. A.F. also likes and gets along with J.H.
The investigator opined that the father's desire to visit and develop a relationship with A.F. was sincere, but still recommended that his parental rights be terminated. The investigator believed the mother's decisions to avoid contact and change A.F.'s name "should have been huge 'red flags' to" the father. He faulted the father for failing to stay in Bakersfield long enough to see A.F. on the day of the name change hearing and failing to come with his parents on other occasions when they visited A.F. in Bakersfield. The investigator described the father's efforts to overcome obstacles to visitation as "minimal" and his phone calls as "token efforts to have contact." He pointed out that the father failed to avail himself of the option of pursuing court-ordered visitation.
At the hearing on the petition, the mother testified that, during the period when she was not living with her parents, she did not tell the father where she was living or what her phone number was, and did not allow her parents to tell him, as she had made a decision to avoid direct contact. The father had the mother's father's telephone number and sometimes called him, but the mother did not know how often they discussed visitation. She believed the father's main purpose in calling was to say he did not want to pay child support. She was aware that the father asked to see A.F. "a few times." She said the father was told when she moved back into her parents' house. She believed the father called "maybe a couple times a year," but when asked about a specific year, November 2010 to November 2011, she said he called "maybe five" times. The mother never answered or returned the father's calls. Her father spoke to the father when he called, but she did not instruct her father to return his calls when he left messages because the father "was supposed to call back."
The mother claimed that, on the day of the hearing on A.F.'s name change, she picked A.F. up from school so that the father's parents could see him, even though her father had already told the father that A.F. would be in school and unavailable.
The mother testified that the father made child support payments during 2009 and stopped making them in late 2009 or early 2010. She began receiving payments again in October, November, or December 2011.
The father testified that from 2006 to 2008, he drove to Bakersfield once each month to pick up A.F. and brought him back to Watsonville for a week-long visit. During these visits, the father took A.F. to a park, took him fishing and to the movies, and played video games with him. He believed he had a good relationship with A.F. during that time. On one occasion in 2008 when he called to arrange to pick A.F. up, the mother told him she was ending the visits because she believed the father's girlfriend had locked A.F. in the bathroom as a form of discipline. The father testified that this never happened and was not possible, as his girlfriend was in the hospital at the time.
The father testified that, in the period immediately after the mother decided to block the visits, he called the mother at least once each week to discuss the matter. The mother argued with him and hung up on him. By the end of 2008 or early in 2009, the mother began refusing to answer his calls.
The father then began speaking with the mother's father, but he was not helpful in setting up visitation because "she gets mad, so he stops telling her to let me see him ...." He asked his own father, mother, and sister to call the mother's family to try to arrange visitation, and they began doing so in 2008.
The father testified that he also continued calling himself in 2009. On one or more occasions in 2009, the mother's father said the mother would let the father see A.F., but when the appointed time came, the father said the mother had taken A.F. somewhere so he was not available.
No one told the father when the mother moved out of her parents' house. His sister found out when she read statements the mother posted about it on the internet on MySpace. When the father saw the mother at the name-change proceedings in 2011, the mother denied that she had ever moved out of her parents' house.
At some point, the father bought a video game system to give to A.F. He wanted to give it to A.F. personally, was unwilling to send it to A.F.'s mother's family, and admitted his purpose in buying it was to create an opportunity to have contact with A.F. He also thought that if he did not give it to A.F. personally, the mother might "give it to somebody else or throw it away or something just so he won't remember me." He never succeeded in visiting A.F., so he never had the opportunity to give him the gift. He had brought it with him to court. Earlier that day, he took the gift to the mother's parents' house. The mother's mother claimed not to know the whereabouts of the mother or A.F. and said she had not had any contact with them for a long time.
The father testified that he had stopped making child support payments because he was unemployed. He began making them again in August or September of 2011 after he began receiving public assistance. These payments, which were $50 per month, were to cover an arrearage. The father's current support obligation had been reduced to zero because of inability to pay. The father believed that in 2009 and 2010, when he had occasional temporary work, money would be deducted from his pay for child support. He did not work from November 2010 to October 2011.
The court questioned the father about the proceedings by which he was ordered to pay child support. It observed that the file showed he filed an answer to the complaint in those proceedings. The father said he remembered doing this: "I remember back then I received, I don't know, some type of papers, and I went to a notary, some guy that fills out those papers, and he helped me fill them out, which I tell you the truth, I didn't really understand what they were at the time."
The father testified that he did not understand before the petition was filed that it was possible for him to pursue court-ordered visitation without an attorney. He called an attorney to inquire about it, but the attorney's fee would have been $6,000, a sum he could not pay. He had never been in family court before the day he testified and had never heard the term "family law facilitator." He only learned that it was possible to seek a visitation order without an attorney when the investigator contacted him about the present petition. Soon after learning of this, he filled out and submitted paperwork to initiate court proceedings on custody and visitation with the help of a friend and served papers on the mother.
The father was 25 years old at the time of the hearing. He never completed high school.
The father's father testified that, after the mother moved away and cut off communication, he obtained the mother's father's telephone number from a relative in Watsonville. The father's father called the mother's father and asked about visiting A.F. The mother's father told him the mother would become angry and refuse. During the one-year period prior to the filing of the abandonment petition, the father's father called the mother's father four or five times to try to arrange visitation. The mother's father always said he needed to make arrangements with the mother, but the mother's reaction always was to become upset, so no arrangements were ever made. The father's father asked the mother's father for the mother's phone number so he could contact her directly, but the mother's father refused, saying the mother would become upset if he complied.
The mother testified again to rebut the testimony of the father and the father's father. She said she never became upset when the subject of A.F. visiting his father was raised, and she never tried to stop A.F.'s father from seeing A.F. When the subject was raised, she said, "I stated, well, they cannot take him, but they're more than welcome to come to Bakersfield to see my son ...."
Counsel for A.F. argued that the petition should be granted. Among other things, she said the fact that the father answered the complaint in the child-support proceedings showed that the father must not have been telling the truth when he testified that he did not understand how to obtain court-ordered visitation.
The mother was self-represented and did not argue. Counsel for the father argued that it was the mother who refused to communicate, and that the father had made a series of attempts to communicate and to set up visits despite the mother's resistance.
Stating that it agreed with the child's counsel's remark about the father's awareness of legal procedures, the court ruled that the father had abandoned A.F.:
"Okay. Under Family Code Section 7822, the Court is required to determine whether or not there has been an intent to abandon a child. An intent is formed if the parent has left the child with the other parent for at least one year without provision—well, without contact other than possible token contact or if the parent has left the child with the other parent for a year without child support.
"There appears to have been some token payments of child support along the way, so I don't have clear and convincing evidence that [the father] has failed to support this child for a one-year period of time.
"Parenting is a fundamental right. It's not something anyone takes away from a parent lightly. You have a heavy burden to show to take away parental rights of someone, and as much as parents have fundamental rights, children have fundamental rights too to stability and to the relationships that they form.
"And we don't expect everyone to have gone to law school and understand how to negotiate the court system, but we do expect people not to sit on their rights, and [A.F.'s counsel] hit the nail on the head when she said [the father] was interested enough to find a way to file something with the court when it had to do with his pocketbook in 2008, but when it had to do with enforcing visitation, he sat back and said, 'I didn't know that you didn't need an attorney.' So I am not persuaded by that evidence.
"While [the father] was not investigating what he could do to enforce his right to be a parent, his fundamental right to be a parent to this child, this child was growing and changing and forming attachments to other people, and that is why the law sets a limit on a period of time that a parent—if a parent goes without a certain period of time in contacting a child, the child has the right to have some stability in the child's life, and this child does have stability in his life.
"So at this time I do find by clear and convincing evidence that there have been grounds established to terminate the parental rights of [the
father], and I do find it is in [A.F.'s] best interests to have his father's parental rights terminated, and I grant the petition as prayed."
The court ordered the self-represented mother to prepare the judgment. She did so, but the document she submitted did not conform to the court's findings. Although the court expressly found that there was no clear and convincing evidence of failure to provide support for one year, the document stated, as the sole reason for the judgment, that the father "left the child in the care and custody of petitioner for a period of over one year without any provision for the child's support, with the intent to abandon the child," and termination of the parental rights was in the child's best interests. The court signed the judgment.
DISCUSSION
The father argues that insufficient evidence was presented to support the court's order. "When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
To prevail, the mother was required to show four elements: the father (1) left A.F. in her care and custody (2) for at least one year (3) without provision for A.F.'s support or without communication and (4) with the intent to abandon A.F. (§ 7822, subd. (a)(3).) The court's finding in the mother's favor must be supported by clear and convincing evidence. (§ 7821.) The governing statutes must be "liberally construed to serve and protect the interests and welfare of the child." (§ 7801.) Failure to communicate or provide support "is presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) The court can find abandonment if the parent has made "only token efforts to support or communicate with the child ...." (Ibid.)The parent need not intend to abandon the child permanently; it is enough if the parent intends to abandon the child during the one-year statutory period. (In re Daniel M. (1993) 16 Cal.App.4th 878, 885 [construing predecessor statute, former Civ. Code, § 232].) Although an intent to abandon can be inferred from "an objective measurement of conduct, as opposed to stated desire" (In re Rose G. (1976) 57 Cal.App.3d 406, 424), the ultimate question is whether the parent had a subjective intention of abandoning the child (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136), not whether the parent's efforts measured up to an objective standard of reasonableness.
It has been held that the clear-and-convincing-evidence standard applicable to an abandonment petition is "'for the guidance of the trial court only ....'" (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211.) If this holding means we are not to take the elevated evidentiary standard into account in deciding whether there was substantial evidence in support of the judgment, then, in our view, it is not correct. The question is whether the finder of fact could reasonably make the challenged finding under the governing standard of proof. (In re Jerry M., supra, 59 Cal.App.4th at p. 298.) In a criminal case, for instance, a defendant can prevail on appeal by showing that a reasonable finder of fact could not find that there was sufficient evidence to convict him beyond a reasonable doubt. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) An appellate court would err if it affirmed where the evidence was sufficient to find the defendant guilty only under the preponderance standard, for example. The question for us in this case is whether, in light of the clear-and-convincing standard, there was substantial evidence of an intent to abandon based on failure to communicate.
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There are some situations in which a parent can evince an intent to abandon through noncommunication even if the other parent has, at the same time, tried to block communication and visitation. These are situations in which contact fails to take place not because of one parent's obstructive efforts but because of the other parent's insufficient interest. Adoption of Allison C. (2008) 164 Cal.App.4th 1004 is an example. When Allison was six months old, Allison's father struck Allison's mother while the mother was holding Allison. The mother moved out and cut off contact. The father was incarcerated for two years for domestic violence. When released, he began visiting Allison at a relative's house every two weeks without the mother's knowledge. After seven months of this, the mother found out and stopped it. Shortly afterward, the father was incarcerated for burglary. The father sent Allison cards from prison until the mother successfully requested that prison authorities prevent him from contacting her. (Id. at p. 1007.) Two years later, the father was released from prison, and the court issued a restraining order against him. The order permitted the father to have weekly supervised visits with Allison, but his parole officer prohibited the visits after the mother asked the parole officer to have the father drug tested twice weekly to ensure Allison's safety. The father's parole conditions still permitted him to contact Allison by telephone and mail with the parole officer's approval, but he never sought that approval. Another year passed with no contact and the mother's new husband filed a petition to terminate the father's parental rights under section 7822. (Id. at p. 1008.) The trial court found that the father had failed to communicate or provide support for over a year with intent to abandon. (Id. at p. 1009.) The Court of Appeal affirmed. In holding that there was sufficient evidence to support the finding of an intent to abandon, the court observed, among other things, that the father failed to seek permission to contact Allison by telephone or mail while he was on parole. (Id. at p. 1013.)
The present case is not similar to Adoption of Allison C. One difference is that Allison's father entirely neglected an obstacle-free path of communication that had been officially offered to him. There were many other obstacles to communication and he argued that these, not his intention, were to blame, but when an unobstructed route of communication appeared—mail and telephone with approval of the parole officer—he did nothing to take advantage of it. Nothing similar happened in this case. A.F.'s father continued throughout the relevant period to attempt to use the one narrow pathway— telephone relays through the mother's father—that the mother allowed to remain open. The father lacked means to make regular visits to Bakersfield and the mother did not allow him to call A.F. directly.
Another difference is that Allison's father's restrictions were of his own making. In part, they were official responses to his criminal activity, and in part they were the mother's own reasonable responses to that activity. Under those circumstances, the court was reasonable in demanding a high level of effort from him to rebut the presumed intent to abandon arising from noncommunication. In this case, the restrictions were a matter of the mother's unilateral preference. A.F.'s mother believed his father had allowed him to be disciplined inappropriately, but this was a mere allegation and, in any event, not at all comparable to the actions of Allison's father.
The mother maintains that there was some evidence that the father did not try as hard as he could to obtain visitation; and she urges upon us, as a reason to affirm, the principle of deferential appellate review of factual findings. After careful consideration, we conclude that the record does not allow this in the circumstances of this case. The mother admitted she terminated the visitation arrangement, refused to allow A.F. to travel to the father's home, and cut off communication with the father. The mother said she cut off communication because she no longer welcomed the father's efforts to communicate. Her parents undisputedly acted to effectuate her resolution to end the existing visitation arrangement and bar the father's communications by refusing to give him her address or telephone number. The mother said she intended communication to take place through her father, but she did not claim she gave anyone her father's contact information, and there was undisputed testimony that father was able to reach the mother's father only by obtaining his phone number from a third party. The mother admitted she "stated, well, they cannot take" A.F. away from Bakersfield, even though it was undisputed that the father could not afford to make a regular practice of staying in hotels in Bakersfield. These facts are inconsistent with the conclusion that the father was making no efforts or only token efforts. The determined efforts of the mother to avoid the father would have been unnecessary if the father had not been trying to remain in contact. The mother characterized her own behavior as not interfering with the father's ability to visit A.F., but the undisputed facts decisively undermine her characterization.
True, there was conflicting evidence on the magnitude of the father's effort. The father claimed he called more often than the mother and her father acknowledged. The court had discretion, of course, to believe the mother's version. It is undisputed, however, that the father and his father made multiple attempts at contact during the relevant period, and in light of the other facts, the trial court could not reasonably find by clear and convincing evidence that the lack of contact between A.F. and his father in the period after 2008 arose from a subjective intent on the father's part to abandon A.F.
The court focused on the father's failure to obtain visitation over the mother's objection, but the statute does not require a parent to make successful efforts to obtain visitation over the other parent's objection. It requires the parent to communicate sufficiently to demonstrate that he or she had no intent to abandon.
The trial court's remark about the father's awareness of legal procedures was illogical. Merely responding to notice of a child support proceeding does not demonstrate sufficient knowledge and understanding to enable a person to sue for visitation. The court implied that the father must have been acting from selfish motives when he filed an answer in the child support proceedings, but this also makes little sense. That he answered means only that he did not default. Defaulting would not have been a proof of merit.
In any event, the statute refers to a failure to communicate, not a failure to sue. A legally sophisticated parent could make a deliberate decision not to sue for visitation; his or her nonlitigiousness would not show an intent to abandon the child. An unemployed high-school dropout's failure to sue proves even less, especially where he concededly made numerous efforts to communicate even after the other parent took affirmative steps to terminate an existing visitation arrangement, and the other parent refused to consider any visitation arrangement that was financially feasible, withheld her location and telephone number, and spoke only through a third party and then only after her efforts to remain incommunicado had failed.
The question is not whether the father's efforts were less than optimal, but whether there was clear and convincing proof that they were so lacking as to be a mere token, revealing a subjective intent to abandon. The question is not whether the father was an insufficiently diligent litigant who "[sat] on [his] rights" but whether he was a delinquent parent who intended to abandon his child.
The father's failure to see A.F. on the day of the name-change hearing also was no evidence of an intent to abandon. Although the father did not ask to see A.F. when he saw the mother at the courthouse, it is undisputed that he inquired earlier and was told he could not see his son because A.F. would be in school. In reality, as the father's parents learned by accident, A.F. was available that day. We do not see how the fact that the father had already left town when the real facts were discovered can be used to prove he lacked genuine interest.
The judgment cannot be sustained on the ground stated in it (failure to support), for the court expressly found that the evidence did not support that ground. It also cannot be sustained on the basis of the court's implicit finding that the father failed to communicate with intent to abandon, since that finding is not supported by substantial evidence.
DISPOSITION
The judgment is reversed.