Opinion
F075959
05-14-2018
In re ALEXANDRA A., et al., Minors. JENNIFER F., Petitioner and Respondent, v. GABRIEL A., Objector and Appellant.
Law Office of Richard L. Antognini and Richard L. Antognini for Objector and Appellant. Law Office of Judith L. Lund and Judith Ann Barron 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CEFL06550, 16CEFL06551)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. Law Office of Richard L. Antognini and Richard L. Antognini for Objector and Appellant. Law Office of Judith L. Lund and Judith Ann Barron for Petitioner and Respondent.
Before Detjen, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
Jennifer F. (mother) filed a Family Code section 7822 petition seeking to have her children, Alexandra and Roman A., declared abandoned by their father, Gabriel A. (father), so his parental rights could be terminated and the children adopted by their stepfather, Shaun F. (stepfather). The family court granted the petition. Father appeals, contending substantial evidence does not support the family court's finding that he left the children with mother or that he intended to abandon them. We affirm.
Undesignated statutory references are to the Family Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father were married, and had two children together, Alexandra and Roman A. On April 11, 2009, mother left father and went to the Marjaree Mason Center, taking eight-year-old Alexandra and four-year-old Roman with her. According to mother, father's anger had worsened to the point where she was concerned she could no longer protect the children from father, and she feared for her own life.
On April 13, 2009, father filed an ex parte request for sole custody, in which he stated that mother had a nervous breakdown and was suicidal. Father's request was denied and the matter set for hearing on June 2, 2009. Mother filed her own request for custody and a restraining order against father on April 16, 2009. Father's case was consolidated with mother's. Mother initially was given sole custody and father supervised visits, and the parties were ordered to participate in a child custody recommending counseling (CCRC) session at family court services (FCS). On June 10, 2009, following a contested hearing, the court granted mother's request for a three-year restraining order against father, and father was ordered to initiate visits at Comprehensive Youth Services (CYS). The children were not protected parties.
At the CCRC session on June 23, 2009, the counselor expressed concern about the parents' conflicting stories and the severity of their allegations against each other. The counselor recommended mother retain sole custody, father's visits remain supervised, and the parties participate in a custody evaluation. At an August 25, 2009 hearing, the court adopted the CCRC's recommendation and ordered the parties to participate in a custody evaluation with Dr. Susan Streeter.
Alexandra's visits with father stopped at the end of July 2009 based on the recommendation of the court mediator, Robert Preston. Preston was concerned because Alexandra was afraid of father and did not want to see him. In addition, she started wetting herself. Alexandra visited father in November and December 2009, as part of Dr. Streeter's evaluation. This was the last time she had contact with father.
On April 15, 2010, following the completion of the custody evaluation, the parties participated in a CCRC session at FCS with Preston. Preston was troubled that the parents appeared to be heavily focused on blaming the other parent and expressed little concern about the children's psychological well-being. Despite concerns about mother's mental health, Preston recommended that mother retain sole legal and physical custody, father participate in therapeutic supervised visits with Alexandra, and a graduated plan be instituted to slowly initiate and increase unsupervised visits with Roman. Mother objected to the recommendation because father had not taken responsibility for what he had done to her and the children, as he denied ever abusing her or the children. The matter was set for a contested hearing.
Roman last saw father in April or May 2010. The visits ended after mother took Roman to a visit at CYS, but he was screaming and crying, and refused to get out of the vehicle, despite mother's encouragement to visit father. Eventually Lori Anderson, who supervised the therapeutic visits, came out and insisted that mother physically remove Roman from the car, or she would either do so herself or get the authorities to do so. Mother did not know what to do, so she called her attorney, who told her to leave with Roman.
On July 26, 2010, the parties submitted a stipulation for mother to retain sole custody and father's contact with the children to be directed by Dr. Carla Brandon. The stipulation required each parent to provide the other with their telephone number and email address. Mother did not provide father with her personal email and telephone number, as father had her attorney's information. Mother never received father's email address; if she had, she would have set up an email account so they could communicate.
The stipulation required mother and father to contact Dr. Brandon and follow her instructions regarding therapy for the children. The purpose of the engagement was to determine if and why the children were reluctant to have contact with father. Mother and the children met with Dr. Brandon twice. The first visit was with mother and the children, and the second with just the children. Thereafter, Dr. Brandon declined to take the appointment and stopped the visits a week later.
Mother got a list of therapists from her insurance company and the parties agreed to ask Dr. Thomas Granata to act as a counselor for the children. Mother's attorney wrote Dr. Granata in September 2010 and asked him to take the case. While Dr. Granata agreed to do so, he would not accept mother's insurance and mother could not afford to pay his $300 hourly fee. Mother believed her attorney asked father to pay part of the fee, but he did not agree to do so.
In March 2011, father filed a motion to modify the custody and visitation order through his attorney. By that time, he had not seen Alexandra for two years and Roman for a year. The matter was set for a two-day trial to begin on June 22, 2011, but it was taken off calendar. During the course of the proceedings, a discovery dispute developed regarding mother's attorney's attempt to subpoena counseling records from CYS, which necessitated continuance of the trial. In August 2011, the parties stipulated for the matter to be heard on December 7 and 8, 2011. In November 2011, the parties agreed to find a therapist to take Dr. Brandon's place so visits could resume and father's attorney was provided with a list of therapists who would take mother's insurance. Father's attorney informed the court that the parties had agreed to take the trial off calendar. Mother never received a suggestion from father or his attorney regarding a replacement for Dr. Brandon, and she was not aware of any motion being filed thereafter to modify the orders appointing Dr. Brandon as the family's therapist.
In April 2012, mother filed a request to renew the restraining order against father. Following a June 25, 2012 contested hearing, the family court granted the request and renewed the restraining order for five years. The children were not protected parties. Father did not raise any concerns about the custody plan during the proceeding, and mother was not aware of any discussions between their respective attorneys about finding a new therapist.
In November 2012, father filed a substitution of attorney and began representing himself. In July 2013, he filed another substitution naming Frankie Rodriguez as his attorney. Thereafter, Rodriguez asked mother's attorney to stipulate to supervised visitation, but the attorney did not agree. Rodriguez reviewed Dr. Streeter's report and told father that he needed to seek counseling, as it had been some time since he had been in counseling and she thought father needed to be in a position where she could show a change of circumstances. At first, father seemed more focused on making sure the court knew his side of the story, although he asked about the children and what he could do to see them. Rodriguez told him the first step was to seek counseling. Eventually father received counseling and, according to Rodriguez, he acknowledged that he emotionally and physically abused mother and the children.
In the summer of 2015, father asked Rodriguez about putting the children on his health insurance. Rodriguez advised him to do so. Although father put the children on his insurance, Rodriguez did not tell mother's attorney that he had done it and mother was not aware that he had done so, so the children never benefited from his action.
Once father completed his counseling, Rodriguez was ready to file a request for visitation. She prepared the documentation and cleared a hearing date with mother's attorney, but shortly thereafter she received a notice that mother's attorney was withdrawing from the case. Rodriguez did not have mother's address and an investigator could not locate mother in time to personally serve her before the hearing, so Rodriguez did not file the motion. Rodriguez had mother's post office box, but chose not to serve her there as she thought mother needed to be personally served. While there was a phone number for mother on the notice of withdrawal, Rodriguez did not try to call it. Despite not having been served, mother attended the October 25, 2016 initial readiness hearing, but the matter was taken off calendar as father failed to appear. Father was still paying for Rodriguez's services in the family law case and Rodriguez estimated he had paid her close to $2,000.
Before Rodriguez could put the matter back on calendar, mother filed petitions in the instant case for each child, by which she sought to declare the children free from parental custody and control, and terminate father's parental rights under section 7822 so stepfather could adopt them. Father filed objections to each petition through his attorney, Rodriguez. The family court interviewed both children and family court services prepared investigative reports.
The children told the investigator that they believed it was in their best interest to allow their "dad" (stepfather) to adopt them because he had been actively involved in their daily care and had been more of a "father figure" than father. Neither child had good memories of father; both were fearful of him and thankful they had not had to interact with him for several years. They both had a strong, positive attachment to mother and stepfather.
Father acknowledged that he had not had contact with Alexandra since April 2009 and Roman since March 2010, but he asserted he had made repeated attempts, through his attorney, to challenge the custody order. While he objected to the initial recommendation from the CCRC counselor, he agreed to forego a trial and stipulated to therapeutic services and visits. He completed the 52 week batterer's treatment program and repeatedly instructed his attorney to initiate court action to increase visitation. He believed it was mother's responsibility to find a second counselor after Dr. Brandon declined to provide services, but she failed to follow through. Father was distracted by his attempt to fight the restraining order and was unable to afford the legal fees associated with both the custody case and restraining order case. He truly believed his attorney was doing everything possible to fight for additional custody and reunification with the children.
The investigator opined that it was in the children's best interest to be declared free from father's parental custody and control, and to terminate father's parental rights. While the investigator gave significant consideration to father's reports that he tried to remain active in his fight for custody and visitation, the children had a broken and unresolved relationship with him, including the absence of physical contact for a very significant period of time. The lack of contact resulted in the children feeling abandoned by father and wanting to form a permanent attachment with stepfather. It was unlikely the relational deficit with father could be repaired and the children would likely be distressed if father were introduced as a parental authority at that time.
In March 2017, father substituted attorney James Miller in place of Rodriguez. Before trial, the family court granted mother's request to amend the petition to allege abandonment pursuant to section 8604.
A trial on the petition was held on April 7, 2017. Mother, father, stepfather, and Rodriguez testified. Mother testified the children had not had contact with father for seven years. He never corresponded with them during that time, or sent cards or gifts, although father gave Roman a watch in 2010 during a visit at CYS. Father had her parents' address and he delivered child support payments to her attorney. Father never had her home address, but he knew where she worked. There was never an order preventing father from sending cards or letters to the children. Father had the phone number to her prepaid phone, which she got in September 2016 along with a post office box, because she was representing herself. The phone number and post office box were on the substitution of attorney form. Before that, father did not have a phone number to contact the children; he had to coordinate phone conversations through mother's attorney.
Mother married stepfather in September 2013. The children had known stepfather for four years and wanted to be adopted by him. Mother believed the children would be harmed if father's parental rights were not terminated, as their sense of security and trust, and their stability, would be negatively affected. Stepfather was the only father they knew, and they had a relationship with him and were bonded to him, especially Roman. Mother was concerned that if something happened to her, stepfather would not have any rights to the children.
Pursuant to the October 2009 stipulation, father was required to pay $465 per month for child support. Father did not pay any child support between May or June 2012 and March 2017. Mother did receive a payment from father in March 2017. Father also was required to pay half of the work-related childcare expenses, which he paid for a short period of time following negotiations between the attorneys. Mother, however, never received the full amount of reimbursement. In addition, father never paid any portion of the children's uncovered medical bills. Mother admitted she did not inform father of the amount of these expenses, as she had spent over $110,000 in attorney fees and felt it was not worth it to incur additional attorney fees to recover these expenses. In 2009 and 2010, however, her attorney had corresponded with father's attorney to try to recover child support and day care expenses. Mother was not aware of any reason father could not have contributed on a regular and consistent basis to the children's support.
Father testified that his visitation schedule in 2009 was supervised visits up to four hours per week. At the time, his attorney was Terri McCracken. Father claimed that his visits lasted only an hour, however, because that was all mother would allow. Mother, however, disputed this and claimed she was available for the full four hours. Before the first mediation, father had four or five visits with the children; after the mediation, he had therapeutic supervised visits with only Roman.
In September 2009, William Schmidt became his attorney. After father attended a psychological evaluation, Preston recommended third party visits with Roman and therapeutic visits with Alexandra. At the time, father was attending individual counseling with Stacy Ramos at CYS. He agreed to the July 2010 stipulation based on his attorney's advice.
Father attended individual counseling at CYS and completed the 52-week batterer's intervention program in 2010. Thereafter, he was able to admit his responsibility and accountability for the things that went wrong in the relationship. Father never saw Dr. Brandon because she called him to say she did not feel qualified to handle the case.
In October 2010, father retained a new attorney, Michael Margosian, because Schmidt let him go "because of money." Margosian filed a motion on his behalf in March 2011. Between October 2010 and March 2011, he and Margosian were trying to find a different therapist for visitation. Father claimed the motion was never tried because Lori Anderson from CYS could not make it to trial.
Father began representing himself in November 2012 due to a lack of money. When asked what he was doing to see his children between November 2012 and July 2013, when he retained Rodriguez, he responded that he was trying to get money to get an attorney. Father claimed he had tried to send the children gifts, but the ones he sent for Alexandra were denied. He gave Roman a watch at one visit, but at the next visit, Roman told him mother could not find it. Father claimed that Schmidt advised him not to write to the children because of the restraining order, even though the order did not include them. At that time father was paying child support, but he stopped because he was not making any money. While he had a job, the work was slow. Father admitted he had not paid support since 2012 and that he did not make an effort to pay until March 2017.
Father felt it would be beneficial for him to have a relationship with the children because "[t]hey should know who I am. They know I love them. Not just me, there's a lot of people missing out on their lives. All I want to do is be part of their life. I want them to know me as much as I want to know them."
At the conclusion of the hearing, the family court stated that it was convinced that father left the children with mother for the statutory period without providing support and the children would benefit from being adopted by stepfather. It was not yet convinced, however, that mother had carried her burden of proving by clear and convincing evidence that father intended to abandon the children. The family court asked the parties to brief both sections 8604 and 7822, and to focus their arguments regarding section 7822 on the issue of intent to abandon. The parties subsequently filed closing briefs.
On May 2, 2017, the family court issued its written ruling granting the petitions under section 7822, which rendered the section 8604 issue moot. The court found: (1) father's support of the children had been negligible, with very sparse payments in 2010 and 2017, and that he chose to pay his attorneys before paying court-ordered child support; (2) father's communication with the children had been nonexistent since late 2009 or early 2010; (3) all of father's efforts had been token; (4) father's lack of effort was inexcusable; and (5) father's claimed excuse that the longstanding domestic violence restraining order kept him from the minors was not credible. The court further found that father's efforts through counsel to initiate visitation with the children in 2013 were far too late, as father had already abandoned the children for far more than the requisite period. The court determined that mother had carried her burden of proving by clear and convincing evidence that father intended to abandon the children during the requisite statutory period and it would be in their best interest to be declared free from his custody and control.
DISCUSSION
Under section 7822, a court may terminate the parental rights of a natural parent when it finds a "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).)
"Thus, a section 7822 proceeding is appropriate where 'three main elements' are met: '(1) the child must have been left with another; (2) without provision for support or without communication from . . . his parent[ ] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done "with the intent on the part of such parent . . . to abandon [the child]." ' [Citation.] 'The . . . failure to provide support, or failure to communicate is presumptive evidence of 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. . . .' (§ 7822, subd. (b).)" (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).)
We review the family court's decision to determine whether substantial evidence supports it. Our review is deferential. We " 'review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [in favor of the prevailing party].' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness's credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
This standard of review places a heavy burden on father. We need not accept his testimony at face value. Instead, we resolve all evidentiary conflicts in favor of the trial court's conclusions regarding abandonment and intent. We will not disturb a decree adjudging a minor an abandoned child if the evidence is legally sufficient to support the factual findings. We do not decide questions of witness credibility, nor do we resolve evidentiary conflicts. (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011; see In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.)
We reject father's contention that because the trial court was required to make its findings based on clear and convincing evidence (§ 7821), we should require more evidence than in most substantial evidence cases, construe the evidence less favorably to mother, and give more weight to his evidence. The clear and convincing evidence standard of proof " ' "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." ' " (Allison C., supra, 164 Cal.App.4th at p. 1010, fn. omitted.) Thus, father's claim that "we must find more substantial evidence to support the trial court's finding . . . than we would if the burden of proof had been only a preponderance of the evidence, is mistaken. Our review is the same regardless of the burden of proof at trial." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 604 [rejecting claim that appellate court required to review finding of fraud under heightened clear and convincing evidence standard; court distinguished case father relies on, Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 468, on ground that case involved a judgment of nonsuit, not a jury trial].)
While father acknowledges he did not communicate with the children for seven years or support them for nearly five years, he contends he did not voluntarily leave the children with mother because there was a court order that awarded mother custody of the children and he did not have the resources to hire a lawyer to modify the custody and visitation orders. In addition, he asserts he believed he was prevented from contacting the children due to the restraining order. We are not persuaded.
"In determining the threshold issue of whether a parent has 'left' his or her child, the focus of the law is 'on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent.' " (In re Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 504.) Thus, a parent will not be found to have voluntarily left a child in the care and custody of another where the child is effectively "taken" from the parent by court order, although the parent's later voluntary inaction may constitute a leaving with intent to abandon the child. (Ibid.) "Simply stated, 'nonaction of the parent after a judicial decree removing the child may convert a [judicial] "taking" into a "leaving" [of a child by a parent].' " (Ibid.)
Here, the children were effectively taken from father by the custody and visitation order made at the outset of the family law case. Following the breakdown in visits after Dr. Brandon withdrew from the case and the parties' inability to locate another therapist who would take mother's insurance, father stopped communicating with the children. He did attempt to modify the custody and visitation order in March 2011. That proceeding ended in November 2011, when the parties agreed to locate a therapist to take Dr. Brandon's place and father's attorney was provided with a list of therapists who would take mother's insurance. Thereafter, father did not provide mother with a suggested therapist and did nothing to attempt to reinstate visits until he retained attorney Rodriguez in July 2013. He did not provide for the children's care in any way and did not seek any type of parental relationship with them. Father's inaction between November 2011 and July 2013 is substantial evidence he voluntarily surrendered his parental role and left the children within the meaning of section 7822. (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at pp. 505-506.)
Father contends his belief that the restraining order prevented him from having contact with the children precluded the family court from finding he left the children with mother. The family court, however, specifically rejected father's testimony that he did not contact the children because of the restraining order. In addition, the restraining order did not preclude father from searching for a replacement therapist or attempting to obtain court-ordered visitation. Instead of doing something to take on a parental role, father did nothing. Moreover, the circumstances that father claims limited his ability to act, namely the restraining order, was a consequence of his own voluntary actions. (See, e.g., Allison C., supra, 164 Cal.App.4th at p. 1012.)
Father also contends his inaction in trying to modify or enforce visitation cannot be held against him because he believed he needed a lawyer to assist him and he could not afford one. There is nothing in the record to suggest, however, that father could not have acted as his own attorney or that he did not have sufficient intelligence to at least attempt to find a replacement therapist so the visits that were ordered could resume.
In sum, father voluntarily abdicated the parental role. The family court did not err by finding father left the children in mother's care and custody.
Father also contends there is insufficient evidence that he intended to abandon the children. Father concedes his failure to support the children and maintain communication with them gave rise to the presumption he intended to abandon the children. He contends, however, that he rebutted the statutory presumption. We disagree.
Father argues the evidence shows he never intended to abandon the children because he lacked the means to pay child support or to hire an attorney. Even if father did not have the ability to pay support, the failure to contribute to the children's support may show abandonment when such failure is coupled with a failure to communicate. (Allison C., supra, 164 Cal.App.4th at p. 1013 [" ' "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." ' " [Citation.] Similarly, ' "failure to pay for maintenance when no demand therefor has been made [citations], or no ability to provide is shown [citations], by itself, does not prove an intent to abandon." ' "].)
Here, it is undisputed that father failed to communicate with the children from late 2009 or early 2010. Father claimed he did not contact the children because he believed the restraining order precluded him from doing so. As we have explained, the family court did not believe father's testimony on this point; therefore, father cannot hide behind the restraining order to excuse his failure to communicate. Father also claims his ability to communicate with the children was hindered because he believed he had to act through an attorney to change the custody and visitation orders, but he could not afford one. The family court obviously did not believe father on this point, as it found his lack of effort "inexcusable." Moreover, father did not need an attorney to find a replacement therapist for Dr. Brandon, which is all that was required to resume visits. Father's not searching for a replacement therapist and not cooperating with mother in finding one, coupled with his lack of communication with the children and his failure to provide support, is substantial evidence of father's intent to abandon the children.
Despite father's statements that he wanted to establish a relationship with his children, the family court reasonably could find father did not overcome the presumption he intended to abandon the children for the statutory period. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212 [intent to abandon must be based on objective measure of conduct, not parent's stated wish].) Moreover, while it is commendable that father engaged in counseling and completed the batterer's treatment program, childhood is brief and a child's need for a permanent home cannot wait for a parent to rehabilitate himself or herself. (Allison C., supra, 164 Cal.App.4th at p. 1016.) Substantial evidence supports the family court's finding of abandonment under section 7822.
DISPOSITION
The judgment is affirmed.