Opinion
D070379
01-05-2017
In re E.R. et al., Minors. J.R., Petitioner and Respondent, v. L.R., Objector and Appellant.
Patti L. Dikes, under appointment by the Court of Appeal, for Objector and Appellant. Clare M. Lemon, under appointment by the Court of Appeal, for Petitioner and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. AN15398) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Patti L. Dikes, under appointment by the Court of Appeal, for Objector and Appellant. Clare M. Lemon, under appointment by the Court of Appeal, for Petitioner and Respondent.
L.R. (Mother) appeals a judgment terminating her parental rights over her two minor children, E.R. and M.R., under Family Code section 7822, which authorizes terminating the rights of a parent who "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 . . . with the intent . . . to abandon the child." (§ 7822, subd. (a)(3).) J.R. (Father) filed the section 7822 petition as a precursor to Maria R. (Stepmother) adopting the children without Mother's consent. Mother contends insufficient evidence supports the juvenile court's findings that: (1) she intended to abandon her children, and (2) termination of her rights was in the children's best interests. We conclude substantial evidence supports both findings and affirm.
Further statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father met in 2005 and married after their son E.R. was born in 2008. They started having marital problems, which worsened after their daughter M.R. was born in 2010. They separated in September 2011, and Father moved with both children into his parents' home. Mother's visitation became sporadic in early 2012, and she began to disappear for periods of time.
Father filed for divorce; the divorce was granted in September 2012 with joint legal and physical custody for both parents and no order of child support. Mother started visiting the children in August 2012 but disappeared again after the divorce, failing to maintain contact for several weeks. Father suspected Mother was using drugs. Mother later admitted she began using heroin in late 2012.
In December 2012, Father sought to modify the custody order. The family court granted sole custody to Father and supervised visitation to Mother, approving the children's maternal grandmother (Grandmother) to supervise Mother's visits. After two or three visits with the children, Mother again disappeared in February 2013.
In August 2013, Mother contacted Father to request visitation with the children. Visits were arranged through a visitation center; Grandmother paid a $500 advance to cover two months of visits. Mother visited the children just once during this two-month period, spending a couple of hours with them at an arcade on September 21, 2013. That was the last time she saw her children. After the visit, Father was concerned about Mother's behavior and asked the family court to condition her visits on clean drug tests. The court granted Father's request, but Mother failed to furnish proof of clean drug tests. She disappeared again without any means of contact for several months.
In late 2013, Grandmother sought to join the custody case to secure grandparent visitation. The matter proceeded to mediation in December 2013; Mother did not participate in the proceedings. Grandmother told the mediator Mother was still using drugs and was not allowed in Grandmother's home due to her drug use. At the hearing following mediation, the family court suggested, but did not order, supervised visitation for Grandmother.
In July 2014, Father married Stepmother, whom he had dated for two years. Mother and Father returned to family court that month, and the court extended the requirement for Mother to furnish proof of clean drug tests in order to visit her children.
In 2015, Mother moved into Grandmother's home. She enrolled in a four-month drug rehabilitation program in June and received a certificate of completion on October 8, 2015.
On October 9, 2015, Father filed a petition in juvenile court (hereafter trial court) in propria persona under section 7822 seeking to declare the children free of Mother's custody and control. In his petition, Father alleged Mother used drugs and had not seen the children since September 2013. He attached the order conditioning Mother's visitation on clean drug tests.
Sometime thereafter, Mother filed a motion in family court requesting visitation. Father filed a motion to halt Mother's visitation pending resolution of his section 7822 petition. The matter proceeded to a hearing in December 2015. Mother did not appear, and the court terminated her visitation rights until the section 7822 petition was resolved.
On December 1, 2015, the trial court received several declarations in support of Father's section 7822 petition. The children's babysitter, teacher, and paternal uncle all attested to Stepmother's exemplary care for the children and to Mother's lack of care. Stepmother stated she had handled the children's schooling, medical visits, and other needs over the past three years, during which Mother never sent the children gifts or called for birthdays or major holidays. Stepmother stated she and Father did not know Mother's whereabouts for extended periods of time, and the children did not ask for her.
On December 3, 2015, the San Diego County Health and Human Services Agency (Agency) filed a report recommending the trial court grant Father's petition and declare the children free from Mother's custody and control. The Agency believed Mother's failure to visit her children since September 2013 indicated her intent to abandon them, and that terminating her rights and freeing the children for stepparent adoption would be in the children's best interests.
On December 4, 2015, Mother appeared at the hearing and opposed Father's petition. The trial court appointed counsel for Mother, Father, and the children and set a March 21, 2016 trial date for a contested hearing. Mother filed a trial brief, arguing: (1) she had no intent to abandon her children; (2) her family had maintained contact with them; (3) she had not been ordered to provide child support; and (4) terminating her rights would not serve the children's best interests.
The Agency interviewed Mother and filed an addendum report in March 2016. Mother told the Agency she had been steadily employed since August 2015 and sober since October 2015. Although Mother admitted to past drug use, she felt she had recently turned her life around and wanted a chance to be a mother to her children again. Mother claimed she had delayed requesting visitation until she got "better."
Stepmother, Father, Mother, and Grandmother testified at trial. Stepmother referred to the children as "my kids" and shared family photos from their time together since 2012. She testified the children had transformed in the past four years; whereas they used to cover their ears and frighten easily, they had become normal, happy children. Stepmother explained she sought to terminate Mother's parental rights to provide security for E.R. and M.R. She stated she did not intend to erase Mother from their lives but was not sure when she would let the children know about her.
Father described Stepmother as the "mother that they were missing." He said he filed the section 7822 petition to provide his children security and safety, in case something were to happen to him. Father testified Mother had not visited the children since September 2013 or furnished proof of clean drug tests. Whereas Grandmother had provided clothes, a gift card, and art supplies, Father testified Mother had never supported the children or attempted to communicate with them. He denied receiving text messages from Mother in 2014 or 2015 and said there was a two-year gap from 2013 to 2015 when Mother made no effort to see the children. Father claimed Mother only tried to establish contact after he petitioned to terminate her parental rights. Father planned to wait to tell the children about Mother until they were more mature. However, he did not intend to discontinue Grandmother's visitation.
Mother testified she started disappearing after she began using heroin in 2012, which led to Father obtaining sole custody. Mother admitted her last contact with the children was in September 2013 but claimed she tried to send Father text messages in 2014 and 2015 for the children's birthdays. She claimed she had not asked for visits because she could not provide proof of a clean drug test. Mother tried four drug treatment programs, both inpatient and outpatient, before finally becoming sober at the last facility in October 2015. She had been sober for the five months since and had not relapsed. Mother worked 40 hours per week at a gas station and had become financially stable. Father served his section 7822 petition the same week she completed treatment. She worried Father and Stepmother would deny visitation if her parental rights were terminated.
Finally, Grandmother took the stand. She testified Mother began using heroin in 2012 and maintained only intermittent contact with her family while on drugs. Grandmother believed Mother was getting her life back on track after leaving the treatment program in October 2015 and was slowly returning to normal life. She believed the children were happy and in a secure home but expressed concern she would lose her visitation if the trial court granted Father's petition. As it was, although she requested monthly visits, Father only allowed an hourly visit once every six to eight weeks at a public park. Grandmother believed Mother should remain a part of the children's lives because she was a good person and had a strong extended family with a lot to offer the children.
The children did not testify, but their counsel argued in favor of granting Father's petition. After closing arguments, the trial court granted Father's petition, terminated Mother's parental rights, and declared eight-year-old E.R. and six-year-old M.R. free from Mother's custody and control. The trial court did not find Mother's lack of financial support relevant in finding she intended to abandon her children under section 7822. However, it found the other section 7822 elements were met by clear and convincing evidence. Although praising Mother for her recent sobriety, the trial court found she was in the early stages of recovery and concluded it would be in the children's best interests to provide them with stability by freeing them for stepparent adoption.
Mother timely appealed.
DISCUSSION
Mother challenges the sufficiency of the evidence supporting the trial court's findings that she intended to abandon her children and that termination of her rights was in the children's best interests. We conclude substantial evidence supports both findings. Mother did not rebut the presumption she intended to abandon E.R. and M.R. when she left them without communication for over a year in Father's care. (§ 7822, subd. (b).) Further, the trial court reasonably found termination would serve the children's best interests. While Mother had been largely absent for three years, Stepmother played a parental role, and the children were thriving in her care.
I.
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.) Courts construe the statutory scheme liberally, "to serve the welfare and best interest of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." (§§ 7800, 7801.) "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. (Ibid.; In re A.B. (2016) 2 Cal.App.5th 912, 923 (A.B.).) "There is no requirement that a parent intend to abandon the child permanently." (A.B., at p. 923.) "The Legislature has determined that a child's need for stability cannot be postponed indefinitely to conform to an absent parent's plans to reestablish contact 'in the distant future.' " (Ibid.)
" 'The questions of abandonment and of intent . . . , including the issue of whether the statutory presumption has been overcome satisfactorily, are questions of fact for the resolution of the trial court.' " (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 506.) The trial court must make these factual findings based on clear and convincing evidence. (§ 7821.) On appeal, however, we review the trial court's findings for substantial evidence. (Allison C., supra, 164 Cal.App.4th at p. 1010; A.B., supra, 2 Cal.App.5th at p. 922.) We do not reevaluate the credibility of witnesses, resolve conflicts in the evidence, or reweigh the evidence. (In re Marriage of Jill & Victor D., at p. 503.) "We simply determine whether there is substantial evidence, believed by the trial court, that supports the court's findings." (Ibid.) As the appealing party, Mother bears the burden to establish insufficient evidence supports the trial court's findings. (A.B., at p. 923.)
II.
INTENT TO ABANDON
As Mother concedes on appeal, her failure to communicate with her children for two years while leaving them in Father's care is presumptive evidence she intended to abandon them. (§ 7822, subd. (b).) Mother's last contact with her children was in September 2013. After that visit, there was a two-year period in which Mother made no efforts to see the children despite having visitation rights. Nor did Mother send her children cards, gifts, or letters.
The trial court reasonably found Mother did not rebut the statutory presumption she intended to abandon her children. (§ 7822, subd. (b).) Although she claimed she sent Father text messages for their birthdays in 2014 and 2015, Father denied receiving them, and four messages in two years would at best be considered token efforts to communicate with her children. Token efforts at communication with a child do not defeat the statutory presumption. (§ 7822, subd. (b); compare A.B., supra, 2 Cal.App.5th at p. 923 [minimal contact with child over four-year period did not rebut presumption] with In re E.M. (2014) 228 Cal.App.4th 828, 840-841 [intent to abandon not established where parent "regularly telephoned the children" and asked to see them several times during period of alleged abandonment].) Moreover, Mother made no effort to see the children until after Father filed a section 7822 petition. "Sporadic efforts to communicate or communications which took place only when legal action was threatened may properly be found to be token only" and insufficient to overcome the statutory presumption. (In re T.M.R. (1974) 41 Cal.App.3d 694, 698.)
On appeal, Mother claims she rebutted the presumption because she stayed away solely to protect her children from drug exposure. However, Mother presented little evidence to support that theory before the trial court. Mother began using heroin in 2012 and became sober only in October 2015. She visited the children in the interim, in September 2013, and stopped visiting only after the family court conditioned her visitation on clean drug tests. Thereafter, "[Mother] knew what was required to allow [her] contact with the minors, namely [her] compliance with the court-ordered conditions. Yet, [she] made no effort to comply with those orders until [2015], some [two] years after they were issued." (In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 507.) Indeed, if Mother's only concern was to protect her children from drug exposure, she could have sent cards or letters while she sought treatment. (See In re Jacklyn F. (2003) 114 Cal.App.4th 747, 756 [mother struggling with substance abuse sent her child " 'stacks' of letters" while minor was in grandparents' care].) Viewing the evidence in the light most favorable to the judgment, there is substantial evidence Mother did not avoid contact to protect her children from drug exposure.
There is likewise little evidence to support Mother's argument on appeal that she did not visit because she could not afford to pay the visitation center for supervision. Grandmother was an approved visitation supervisor who actively sought more time with her grandchildren. Grandmother also paid for two months of supervised visitation in 2013, but Mother only made one visit during that period before disappearing again for several months and losing contact with her children. The trial court could reasonably conclude Mother did not rebut the presumption she intended to abandon her children based on evidence she could not afford visitation supervision.
Mother seeks to "redevelop" a relationship with her children. She points to having been sober since October 2015 and maintaining steady employment for the first time. Although her efforts to regain sobriety and resume work are commendable, they do not overcome the presumption she intended to abandon her children during the statutory period. As the court held in A.B., supra, 2 Cal.App.5th 912, although Mother may not have intended to permanently abandon her children, the law does not require that her children's lives be kept in limbo based on such circumstances. (Id. at p. 923.) "In fact, doing so would not be consistent with the legislative purpose of providing abandoned children with the stability and security of an adoptive home[.]" (Id. at pp. 923-924.)
A.B. is instructive. In that case, a child's stepfather sought to terminate a father's parental rights under section 7822 so he could adopt the child. (A.B., supra, 2 Cal.App.5th at p. 917.) The father had minimal contact with the child for four years. (Id. at p. 923, fn. 9.) He then became sober and reestablished visitation in the six months before the stepfather filed the section 7822 petition. (A.B., at pp. 916-917.) On appeal, the court affirmed the finding of abandonment despite the father's recent efforts toward self-improvement, concluding substantial evidence established he "did not make anything other than perfunctory efforts" to see the child for well over the one-year period. (Id. at pp. 923-924.) Here too, despite Mother's recent sobriety, substantial evidence supports the trial court's finding she made only token efforts to communicate with E.R. and M.R. for well over a one-year period while she left them in Father's care.
Mother also argues a finding of abandonment cannot rest on her failure to provide financial support. Because section 7822, subdivision (b) states the elements of abandonment in the disjunctive and we find substantial evidence Mother failed to communicate with E.R. and M.R. for more than one year, we need not address whether Mother further demonstrated an intent to abandon her children by failing to support them. (A.B., supra, 2 Cal.App.5th at p. 923, fn. 10.)
In sum, Mother did not rebut the statutory presumption, and the trial court did not err in ruling she intended to abandon her children within the meaning of section 7822, subdivision (a)(3).
III.
BEST INTERESTS OF THE CHILDREN
"Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child." (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) "[T]he best interests of the child are paramount in interpreting and implementing the statutory scheme." (Ibid.) In particular, section 7822 seeks to serve a child's best interest "by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life." (§ 7800.)
Mother argues that even if substantial evidence supports the trial court's finding of abandonment, we should nonetheless reverse the judgment because termination of her rights did not serve the children's best interests. She claims she had regained sobriety and was ready to participate in E.R.'s and M.R.'s lives and contends it would benefit them to know their mother. Mother also argues she has a strong extended family, including her parents, who had maintained a relationship with the children. She contends the children's continued relationship with Stepmother did not require terminating her rights, whereas termination would likely diminish visitation for Mother and her extended family.
We conclude substantial evidence supports the trial court's finding that termination of Mother's parental rights served the children's best interests. Whereas Mother had been largely absent from the children's lives for three years, Stepmother had played a parental role, and E.R. and M.R. had blossomed in her care.
As of trial, Mother had not seen her children since her visit in September 2013. Before that visit, she was in and out of the children's lives and would disappear for months at a time. Mother points to evidence that during her marriage, she was a stay-at-home mom who cooked meals for the family. However, there is also substantial evidence she stayed out all night and failed to provide reliable childcare during that period. After her September 2013 visit, Mother at best sent four text messages to Father for the children's birthdays over the next two years. Although she claims she followed the children's progress through Grandmother, the record reflects she had problems with her family and maintained only intermittent contact with Grandmother once Mother started using drugs in 2012.
On appeal, Mother relies heavily on Grandmother's visits with the children to make up for her own lack of visitation. Mother does not cite, and our independent research does not reveal, any authority for the proposition a parent may bootstrap engagement by extended family to show termination would not serve a child's best interest.
On review for sufficient evidence, our inquiry is not whether the evidence could support a contrary finding but instead "whether substantial evidence, contradicted or not, supports the conclusions the court did make." (A.B., supra, 2 Cal.App.5th at p. 925.) There is sufficient evidence Mother had been absent from her children's lives for over two years. Although Mother had made strides in recent months, there is evidence she was in the early stages of recovery; Grandmother testified Mother was "[s]lowly progressing into normal life."
By contrast, there is ample evidence Stepmother provided the children with love, stability, and security, and that the children were thriving in her care. Once Stepmother entered the picture in 2012, E.R. and M.R. never asked for Mother. They called Stepmother "mommy" and trusted and loved her. The children had made "a complete 180" since Stepmother's arrival. Before, they were "unsociable," "closed off," and "afraid," showing stress or covering their ears when faced with loud noises, other children, or driving through a car wash. In the four years with Stepmother, the children had blossomed into "normal," "happy," "wonderful" children who were no longer stressed by their environment. Even Mother agreed Stepmother and Father "[a]bsolutely" provided the children a good home; Grandmother felt the children appeared happy and secure in their home environment. The trial court could reasonably find it would be in the children's best interests to free them for adoption by Stepmother.
Mother argues it would benefit the children to "redevelop" their relationship with her and claims preserving her rights would not jeopardize the children's relationship with Father or Stepmother. However, the best interest standard seeks to provide abandoned children with the stability and security of an adoptive home (§ 7800), not preserve the possibility of a future parent-child relationship. " ' "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." ' " (A.B., supra, 2 Cal.App.5th at p. 924.) That Mother is "now clean and sober, ready and able to participate in their lives" does not negate the trial court's finding termination of her rights was in the children's best interests.
Mother also argues her extended family was "strong" and had a lot to offer her children. However, Mother fails to cite evidence she provided stability and security for E.R. and M.R. by serving as an intermediary between them and her extended family. A.B., supra, 2 Cal.App.5th 912 is again instructive. In opposing the stepfather's section 7822 petition, the father in A.B. argued that terminating his parental rights would cut the child off from her maternal relatives (who had had a " 'falling out' " with the mother). (Id. at pp. 916, 925.) The court rejected the father's argument, explaining:
"[A]lthough [father] argues that [stepfather's] presence in A.B.'s life brought less stability and security because A.B. was cut off from
[mother's] mother and other maternal family members, he cites no evidence establishing that [stepfather's] relationship with A.B. and [mother] caused the family rift or that A.B. would have been better off if the court did not allow [stepfather] to adopt her. [Father] likewise has failed to identify any evidence to suggest that his acting as an intermediary between A.B. and [mother's] family would have created greater stability for A.B. Similarly, no evidence established that A.B.'s new relationship with [father] was an essential substitute for her lost relationship with [mother's] mother."(Id. at p. 925.)
Applied here, even assuming the children were bonded to Grandmother, Mother presents no evidence her role as an intermediary would afford the children greater security and stability. (A.B., supra, 2 Cal.App.5th at p. 925.) She also does not point to any evidence indicating the children would fare better if the court did not allow Stepmother to adopt them. (Ibid.) Although Mother may have a supportive extended family with much to offer, this does not defeat the trial court's finding that termination of her parental rights would serve the children's best interests.
The trial court did not make a finding as to the nature of the grandparent-child bond. Grandmother testified the children seemed happy to see her during visits, whereas Father testified they never asked about her. --------
In sum, there is sufficient evidence supporting the trial court's finding that termination of Mother's parental rights to free the children for adoption by Stepmother would serve E.R.'s and M.R.'s best interests.
DISPOSITION
The judgment is affirmed.
/s/_________
HALLER, J. WE CONCUR: /s/_________
BENKE, Acting P. J. /s/_________
AARON, J.