Opinion
D059631 Super. Ct. No. AN13587
12-01-2011
In re JOHN M., a Minor. MICHAEL R., Petitioner and Respondent, v. STEVEN M., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.
Steven M. appeals a judgment terminating his parental rights to his minor son,
John M., on the basis of abandonment under Family Code section 7822. Steven contends he did not "leave" John in the care and custody of another person with the intent to abandon him. We affirm the judgment.
All further statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
John was born in 1999 to Elizabeth R. and Steven, who were married to each other at the time. In 2005, Elizabeth and Steven separated. They divorced the following year, with Elizabeth receiving sole physical and legal custody of John, and Steven receiving supervised visitation. Steven visited John twice in 2006. Their last in-person visit was on December 25, 2006. Steven did not communicate with John between February 2007 and June 2008.
Steven had serious health issues, and he moved to West Virginia in 2007 to increase his chances of receiving a liver transplant. He underwent liver transplant surgery in June 2007, had several follow-up surgeries and continues to need medical care for his condition.
In April 2008, Steven filed a request in the family court in San Diego for visitation with John. Following mediation, the court ordered Steven to have supervised visits with John twice a week, in addition to two telephone calls a week. Steven, who still lived in West Virginia, regularly telephoned John for a couple of months. The frequency of telephone calls then began to decrease. Steven's last telephone conversation with John occurred on March 24, 2009.
In April 2009, Elizabeth married Michael R. Michael had been supporting John financially and emotionally since 2006. On April 5, 2010, Michael filed a petition under section 7822, seeking to free John from Steven's custody and control on the ground Steven had not communicated or supported John for a period of one year. The petition was filed as a companion matter to Michael's stepparent adoption petition.
At the hearing on the petition in February 2011, Elizabeth and Steven presented conflicting testimony as to the amount of contact Steven had with John since 2005. Elizabeth testified Steven had no contact with John between December 25, 2006 and June 2008, even though Steven had always known their telephone number and mailing address. The court ordered telephone contact between Steven and John in June 2008, and John had his own cell phone in order to facilitate calls. At first, Steven telephoned John often, but the frequency of the calls decreased, and there was no communication after March 24, 2009. Elizabeth believed it would be in John's best interests to be adopted by Michael because John and Michael have a close and loving relationship, and John wants Michael to adopt him.
Steven testified he initially visited John regularly but then became very ill. He claimed he tried to contact John, but Elizabeth prevented him from doing so. Steven moved to West Virginia in 2007, had liver transplant surgery, and experienced complications that required further hospitalizations and medical care. He said he sent John cards and letters between February 2007 and April 2008, but admitted he had no telephone contact with him. When Steven was healthy enough to travel in the spring of 2008, he came to San Diego to request court-ordered visitation with John. Although the court set up a visitation schedule, Steven claimed Elizabeth prevented visits from occurring. Steven returned to West Virginia and had telephone contact with John. The calls did not go well because they were being recorded or monitored. According to Steven, after he missed several calls, John told him, "Well, if you can't call me, maybe we shouldn't do this anymore." Steven said he tried calling John after that, but John did not take his calls. Steven testified he never intended to abandon John. He admitted he has had no contact with John since March 24, 2009. He has not sent John cards, letters or gifts since then, and has made no attempts to telephone John or return to court to enforce the visitation order.
The court heard John's testimony in chambers. John said he considers Michael to be his father and he is excited about the possibility of being adopted by him. John testified he does not know Steven, remember much about him or have any feelings about him. John was happy when he first started having telephone conversations with Steven, but Steven stopped calling even though John was always available to take the calls on his cell phone. John did not want to have in-person visits with Steven because Steven was a stranger to him. John felt sad when Steven did not follow through on his promises to send presents. John never received any cards or letters from Steven and has not received a telephone call from him in well over a year.
After considering the evidence and arguments of counsel, the court granted Michael's petition and declared John free from Steven's custody and control. The court found, by clear and convincing evidence, Steven left John in the care and custody of Elizabeth with the intent to abandon him by failing to communicate with him for two separate one-year periods. The court further found John's best interests would be served by allowing Michael to adopt him.
DISCUSSION
Steven contends there is no substantial evidence to support the court's findings he left John with Elizabeth with the intent to abandon him. Steven asserts his life- threatening medical condition required him to move away, and Elizabeth and Michael thwarted his efforts to maintain contact with John.
A
A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 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).) A parent's "failure to communicate" with the child for a period of one year or more "is presumptive evidence of the intent to abandon. If the parent [has] made only token efforts to . . . communicate with the child, the court may declare the child abandoned by the parent . . . ." (§ 7822, subd. (b).)
The statute requires lack of support or communication. (§ 7822, subd. (a)(3).) The court's findings were based on Steven's failure to communicate, not failure to support because there was evidence Steven provided some support for John through Social Security disability benefits.
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Whether a parent has intentionally abandoned a child within the meaning of section 7822 is a question of fact for the trial court. (In re Allison C. (2008) 164 Cal.App.4th 1004, 1011; In re Amy A. (2005) 132 Cal.App.4th 63, 69.) We review the court's findings for substantial evidence—evidence that is reasonable, credible and of solid value. (In re Allison C., at p. 1011.) Our review does not permit us to consider the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the trial court's order and affirm the order even if there is substantial evidence supporting a contrary finding. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Allison C., at p. 1011.)
A parent's failure to communicate with a child or intention 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.) A parent " 'leaves' " a child by voluntarily surrendering the child to another person's care and custody. (In re Amy A., supra, 132 Cal.App.4th at p. 69.) A court order denying custody to one parent does not necessarily preclude a finding that parent " 'left' " the child within the meaning of section 7822. (Id. at p. 70.)
B
Here, the evidence shows Steven's loss of contact with John cannot be deemed involuntary. Following Steven and Elizabeth's acrimonious divorce, Steven retained court-ordered visitation rights and exercised those rights by visiting John twice in 2006. He then stopped all communication when he left California in February 2007, and allowed more than a year to pass before returning to court in April 2008 to request further visitation. Although Steven claims he was not well enough to travel to California until that time, neither his health problems nor his limited resources excuse his failure to communicate with John by calling or sending cards, letters or gifts. (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 505 [father's inaction was substantial evidence he voluntarily abandoned his parental role and " 'left' " children within meaning of section 7822]; In re Amy M., supra, 132 Cal.App.4th at p. 69 [in determining whether parent has left his or her child, the focus is on voluntary nature of abandonment of parental role rather than physical desertion by parent].)
Beginning in June 2008, Steven resumed communications with John by regularly telephoning him from West Virginia for several months, but the frequency of those calls decreased. Steven admitted his last telephone conversation with John occurred on March 24, 2009, more than a year before the petition to terminate parental rights was filed. During this time, Steven had no parental relationship with John. These circumstances constitute substantial evidence that Steven voluntarily surrendered his parental role, and thus, " 'left' " John with Elizabeth within the meaning of section 7822. (See In re Amy A., supra, 132 Cal.App.4th at p. 70.)
C
Substantial evidence also supports the court's finding Steven intended to abandon John during the one-year statutory period before the petition was filed. (See In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) Intent to abandon is a factual question that may be resolved by objectively measuring the parent's conduct rather than the parent's subjective claims. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) The 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. (Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) To overcome the statutory presumption of intent to abandon, the parent must make more than token efforts to communicate with the child. (In re B.J.B., at p. 1212.)
Here, the undisputed evidence shows that at the time the petition was filed, Steven had not communicated with John, even on a "token" basis, for more than a year. Steven knew how to contact John on his cell phone, and concedes he missed some of the scheduled calls and eventually stopped calling. He presented no evidence that his health problems prevented him from calling, writing or simply inquiring about John's well-being, and he failed to give a reasonable explanation of why it was too difficult to do so. Although Steven claimed Elizabeth and Michael interfered with his efforts to communicate with John, the court disbelieved him. Instead, the court found John credible when he testified he was always available on his cell phone, but Steven did not call, and he did not send cards, letters of gifts for more than a year. Even though Steven had many opportunities to renew his relationship with John and continue communicating with him, John was simply not a priority in Steven's life.
Moreover, if Steven believed Elizabeth and Michael were somehow preventing him from having contact with John, he should have availed himself of the opportunity to enforce the court's visitation order or seek a different order. He had previously used the court system and knew how to do so. "[T]he reality is that parents sincerely interested in maintaining contact, whether by telephone, card or personal visit, with their children, or with the persons responsible for their care, will do so under ordinary circumstances in any [one-year] period." (In re Rose G. (1976) 57 Cal.App.3d 406, 420.) The court could reasonably infer from Steven's lack of interest in John that his failure to communicate with him for more than a year was motivated by an intent to abandon. Substantial evidence supports the court's findings under section 7822.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.