Opinion
F078317
07-23-2019
In re MADISON B., a Person Coming Under the Juvenile Court Law. M.M., Petitioner and Respondent, v. ERIC B., Objector and Appellant.
Elaine Forrester, under appointment by the Court of Appeal, for objector and appellant. Amanda K. Moran 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAT17003055)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Dawn Bittleston, Temporary Judge. (Pursuant to Cal. Const. art. VI, § 21.) Elaine Forrester, under appointment by the Court of Appeal, for objector and appellant. Amanda K. Moran for petitioner and respondent.
Before Detjen, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
Eric B. (appellant), the father of Madison B., appeals from the trial court's order granting a petition filed by Madison's mother, M.M. (the mother), to terminate appellant's parental rights based on abandonment. (Fam. Code, §§ 7820, 7822.) Appellant contends there was insufficient evidence he left Madison in mother's custody with the intent to abandon her. We concur and reverse the termination of his parental rights.
Statutory references are to the Family Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and mother were married in December 2003 and separated in January 2008. Madison was born in March 2005. After the parents were divorced in November 2008, the court awarded them joint legal and physical custody and ordered appellant to pay child support.
In February 2009, mother petitioned for temporary orders modifying custody and visitation, restraining appellant from contacting her and requiring him to drug test. She alleged he was fired from work and under investigation for drug use and was making disturbing phone calls to her, threatening to take Madison from her. According to mother, he had not provided any child support and visited Madison for five hours in the prior eight months.
On March 9, 2009, the parents appeared, in propria persona, and testified at a hearing to show cause on mother's petition to modify custody and visitation. The court ordered appellant to submit to a drug test that same day and continued the matter to March 11 for the drug test results. Appellant failed to appear on March 11 and the court awarded mother sole legal and physical custody of Madison, issued a stay away order and denied appellant visitation. The court, however, granted appellant leave to request visitation if he had a clean drug test and mother discretion to agree to visits. If mother refused appellant visitation after he provided a clean drug test, appellant was required to petition the court to modify the visitation order.
Specifically, the court's order stated:
"Court orders family stay away orders. Court orders sole legal and sole physical custody with no visitation to the father.
"Father can request visitation once he has clean drug test. Mother can mutually agree to visits.
"If father provides clean drug test and mother does not grant visitation then the father needs to apply for modification with the court." (Unnecessary capitalization omitted.)
In March 2017, mother filed a petition to free Madison from appellant's custody and control so that Madison's stepfather, Russell M., could adopt her. Mother's petition was filed under section 7822, subdivision (a)(3), which may apply 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." In a declaration, mother alleged Madison had lived exclusively with her since 2008 and appellant had not had any contact with Madison or provided her any support since December 2007. It further alleged that granting the petition was in Madison's best interest because mother was remarried, and her husband wanted to adopt Madison.
The court set a hearing and issued a citation for appellant to appear. Appellant appeared at the hearing and the court appointed counsel for him, finding he was unable to afford counsel. The court also appointed counsel to represent Madison.
Madison was interviewed by a family court services investigator in May 2017. She was in sixth grade at the time and according to mother was doing well academically and on the honor roll. She enjoyed socializing with her friends, playing the piano, dancing, singing in the choir and was interested in swimming competitively.
Madison regarded Russell as her father even though she knew appellant was her biological father. She had not seen appellant for many years. Her only memory of him was one occasion when he picked her up from daycare. She did not receive any presents, cards or letters from him. She was in favor of appellant's parental rights being terminated because she wanted to be adopted by Russell. She did not want to attend the court hearing.
Appellant told the investigator he consistently visited Madison three days a week and every other weekend until the court terminated visitation in 2009. He did not pay child support because mother refused it. He made his last offer in 2011. He denied ongoing drug use, claiming he used drugs on one occasion. He gave mother a copy of his drug test results as required by the court, but mother refused him visitation. Asked why he did not bring the matter to the court, he acknowledged he made a mistake by not filing a petition. He called mother several times in 2010 and 2011 at her office but stopped after she told him to quit calling her there. He saw Madison at a Filipino festival in 2011 or 2012 and approached her but mother intervened and pulled her away.
Mother told the investigator appellant had a long history of drug use that continued into their marriage and led to their divorce. Appellant denied using drugs even though mother found drug paraphernalia in the house and he disappeared sporadically. No one could find him on Madison's first and second birthdays. She permitted him to visit Madison after their separation until the court suspended visitation. She denied that he ever presented her negative drug test results or that she interfered with his ability to visit Madison. After the court suspended appellant's visitation, he called mother once a year at her place of employment, the Comprehensive Blood and Cancer Center (cancer center) and asked to see Madison. She told him to provide a clean drug test. In 2010, she married Russell and he assumed the role of Madison's father because of appellant's absence. Appellant last called her in 2012 or 2013 to request visitation. She denied seeing appellant at a Filipino festival or pulling Madison away from him. She said he had not paid any child support and changed jobs to avoid paying. She and Russell planned to move their family to Texas at the end of the school year.
The investigator recommended the court free Madison from appellant's custody and control because he made no effort to reinstate visitation even though he knew his legal recourse was to petition the court and was familiar with court proceedings having represented himself in the divorce. He also knew where mother worked and could have served her there. In addition, Madison wanted to be adopted by her stepfather.
The court conducted the trial on abandonment in October 2018 and received the investigator's report into evidence. Mother testified appellant's visitation was terminated because of positive drug test results. He never provided her a negative drug test result afterward or petitioned the court to resume visitation. He did not pay child support or send cards, gifts or notes. She worked at the cancer center from 2006 to June 2017 when she and the family moved to Texas.
Appellant testified he last tried to give mother child support in 2010 at the home of mother's sister. He offered mother cash, but she refused it. He was employed between 2009 and 2018, and never received a notice from his employer stating his wages were going to be garnished. He denied ever quitting a job to avoid paying child support. He obtained a clean drug test result after March 2009. He did not have a copy with him but mailed a copy to mother at her sister's house and submitted a copy to the court. He did not file a petition to reinstate visitation but acknowledged he was familiar with how to file paperwork with the court. He did not pursue reinstatement of visitation because he did not know where to serve mother. He was afraid to serve her at work because she had threatened to call the police if he called her at work and he was afraid she would do the same if he attempted to serve her there.
Appellant's attorney asked the court if he could review the dissolution case and asked the court to take judicial notice of it, which the court granted. Included in the file were negative drug test results, which the court marked as exhibits. The results were dated January 25 and January 29, 2010. Appellant testified he contacted mother on several occasions in 2010 and 2011 at work to tell her he had negative drug test results. His grandmother was dying and wanted to see Madison. Mother didn't believe him and told him to test again. He did the next day. She told him to stop calling her or she was going to call the police. Appellant called her at work because he did not know where she lived, although he knew where her sister and mother lived. He attempted to locate mother on social media, but she blocked him. He did not know she moved to Texas. He purchased clothes for Madison every year for her birthday and gave them to the maternal grandmother to give to Madison. Appellant knew where the maternal grandmother and maternal aunt lived so he was able to deliver to them anything he intended to give Madison. He did not give Madison a Christmas gift in 2016 because he did not know if she was receiving his gifts.
Recalled to the stand, mother denied that appellant delivered a gift for Madison at her sister's house. She and her mother and sister had a close relationship and there would be no reason for them to hide that from her. She also denied receiving any cash from him. The only support she received from him was prior to 2010. She said he texted her about her moving to Texas and said he would give up custody and still pay child support. She also denied that he told her he had a clean drug test. She understood that she had a right to refuse visitation and could have waited for him to file a motion before agreeing to visitation.
Laura M., appellant's girlfriend of eight years, testified she accompanied appellant to the maternal grandmother and maternal aunt's houses approximately five times from 2011 to 2017 to inquire about Madison. They would always tell him, "She's okay." She purchased clothes for him to give Madison for her birthday in 2012 and was with him when he gave the clothes to the maternal aunt. They drove by the aunt's house in 2017 but did not stop because they did not see any activity. Appellant was not aware Madison moved to Texas until afterward. In June 2017, he texted mother and asked if Madison could see his father who was in critical condition, but mother denied it. Laura was with appellant at the yearly Filipino festivals from 2012 to 2018. They saw mother's family there and sometimes mother, but appellant was too afraid to approach them. At the festival in 2012, appellant's brother bought Madison a snow cone and she was able to see the rest of appellant's family.
The court found that appellant abandoned Madison within the meaning of section 7822 and that termination of his parental rights was in Madison's best interests. The court found that mother frustrated appellant's contact with Madison but that the court provided him a "roadmap to follow" if he wanted to resume visitation, which he failed to utilize. The court found appellant left Madison in mother's care for over a year without any physical contact or support with the intent to abandon her.
We granted augmentation of the record to include the judgment filed on October 15, 2018, declaring Madison free from appellant's parental custody, care and control. --------
DISCUSSION
I. General Legal Principles
The Family Code permits termination of parental rights when a parent abandons his or her child. (§§ 7803, 7822.) As relevant here, a parent abandons a child if he/she 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).)
" ' "In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same." ' " (In re Brittanny H. (1988) 198 Cal.App.3d 533, 549.) "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]." ' " (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010.) The required one-year period of abandonment need not be the one year immediately preceding the filing of the petition. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 922.)
"The failure to communicate or provide financial support for a one-year period is presumptive evidence of an intent to abandon, and 'token efforts' to support or communicate will not overcome the presumption. (§ 7822, subd. (b).) However, '[t]he fact that a parent has not communicated with a child ... or that the parent intended to abandon the child does not become material ... unless the parent has "left" the child' within the meaning of section 7822." (In re H.D. (2019) 35 Cal.App.5th 42, 50 (H.D.).)
"A finding of abandonment 'shall be supported by clear and convincing evidence' (§ 7821), and we apply a substantial evidence standard of review to the trial court's findings." (H.D., supra, 35 Cal.App.5th at p. 50.)
Appellant contends there is insufficient evidence he "left" Madison within the meaning of section 7822 and thus did not abandon her. Relying on In re Jacklyn F. (2003) 114 Cal.App.4th 747 (Jacklyn F.), he contends she was taken from him by judicial decree when the court in 2009 granted mother sole legal and physical custody and denied him visitation. Respondent concedes Jacklyn F. is factually on point and even argues this court should follow its ruling and affirm, apparently missing the fact that Jacklyn F. was a reversal on the very grounds appellant raises here.
We conclude the custody order operated as a judicial taking of Madison pursuant to Jacklyn F. and precluded a finding under section 7822 that appellant "left" her with the mother. We further conclude father's failure to communicate with or support her cannot support a finding he "left" her. Having concluded father did not "leave" Madison, we reverse the order terminating his parental rights. II. Appellant Did Not "Leave" Madison
Leaving a child in the care of another in the context of abandonment signifies a voluntary act on the part of a parent to abandon his or her parental role. (H.D., supra, 35 Cal.App.5th at p. 51.) Thus, as a general proposition, a parent whose child has been taken away by court order without the parent's consent has not abandoned the child. (In re Cattalini (1946) 72 Cal.App.2d 662, 665 (Cattalini).) The appellate court in Cattalini addressed this issue in the context of former Welfare and Institutions Code section 701, which also required a finding the child was "left" for a specified period in order to constitute abandonment. In Cattalini, the children had been placed by court order in the custody of their mother whose husband wanted to adopt them. Observing that to "leave" connotes a voluntary action, the appellate court held: "[I]t may not be said that appellant left his children in the care and custody of the respondent when, by an order of the court, they were taken from the joint control of their parents and placed in the sole care and custody of the mother." (Id. at p. 665.)
Parental inaction, however, following a custody order may constitute a leaving with intent to abandon the child. (Cattalini, supra, 72 Cal.App.2d at pp. 665-666.) Indeed, "[n]umerous appellate decisions have long agreed that the leaving-with-intent-to-abandon-the-child requirement of section 7822 can be established by evidence of the parent's voluntary inaction after an order granting primary care and custody to the other parent." (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 505.)
Jacklyn F. demonstrates the importance of considering the noncustodial parent's legal rights and interference by the custodial parent or guardians in determining whether the foundational fact of abandonment, i.e., whether the parent "left" the child, has been met.
A. Jacklyn F.
In Jacklyn F., paternal grandparents prevailed on a petition to terminate the parental rights of their grandchild's mother and the order was reversed on appeal. The underlying case was initiated on October 13, 1998, when the grandparents filed a petition for guardianship of their then, seven-year-old grandchild (the minor). The minor's mother had a history of substance abuse and often left the minor in the care of the grandparents for days at a time. The mother had been gone for three days when the petition was filed. In December 1998, the court appointed the grandparents the legal guardians of the minor and ordered supervised visitation and telephone calls for the mother. One week later, the grandparents requested an order restraining the mother from any contact other than scheduled supervised visits and peaceful telephone contact after receiving harassing telephone messages left by the mother on their answering machine. The court granted the restraining order in April 1999. At a hearing in July 1999, the court ordered the parties to work out a temporary visitation schedule. Although the mother had been granted visitation in January 1999, she did not contact the visitation coordinator until March 1999 to schedule a visit and visited only once in April 1999. (Jacklyn F., supra, 114 Cal.App.4th at pp. 749-750.)
In May 2002, the mother requested supervised visitation, telephone contact and counseling with the minor. The grandparents objected to visitation. In August 2002, the grandparents filed a petition for adoption as well as a petition to terminate parental rights. They alleged the minor had been living with them for more than a year and the mother had not been in contact with her or paid support for the preceding year. The minor, who was in sixth grade, told the probate investigator she had not had contact with her mother since the second grade. She wanted to live with her grandparents " 'for the rest of her life' " and wanted no contact with her mother. The mother told the investigator she had not used methamphetamine or alcohol for over a year or more. (Jacklyn F., supra, 114 Cal.App.4th at pp. 750-751.)
At the hearing on the grandparents' petition in March 2003, the grandmother testified there had been an order in place since January 1999 allowing the mother to visit but she visited only once. She had not given the minor letters written to her by the mother because the minor was struggling with her own problems. The minor was not told that her mother attempted to contact her. When the minor's attorney recently gave her letters from the mother, the minor threw them out. The minor's therapist testified she received " 'a number of letters' " from the mother which she gave to the grandparents. She received only one letter from the mother in 2002 and no letters in 2003. The mother denied knowing she could visit her child. She testified she was instructed to send letters to the minor's therapist who would screen them. She denied being served with a restraining order but said she may have been incarcerated at that time. She did not apply earlier for visitation because she relapsed into drug use and was not ready to see her child. She had only been in a condition to do so for the last year. (Jacklyn F., supra, 114 Cal.App.4th at pp. 752-753.)
The trial court granted the petition to terminate parental rights, finding the evidence was sufficient to support a presumption of abandonment. It noted the mother had not requested visits between 1997 and May 2002 and found her testimony that she believed her visitation was suspended " 'not convincing.' " The court found mother's letters were token efforts to communicate and found no evidence she attempted any support over the years. The court observed the minor was thriving with her grandparents and her desire to be adopted was " 'clear and uncontroverted.' " (Jacklyn F., supra, 114 Cal.App.4th at p. 753.)
The court of appeal concluded there was insufficient evidence to establish that the minor was abandoned. (Jacklyn F., supra, 114 Cal.App.4th at p. 757.) Citing Cattalini and the Supreme Court precedent on which it relied (Matter of Cozza (1912) 163 Cal. 514, 527), the court affirmed the general principle that a "judicial order taking custody of a child cannot support a finding of abandonment." (Jacklyn F., supra, 114 Cal.App.4th at p. 754.) The court acknowledged numerous appellate court cases concluded that the leaving requirement may be satisfied by parental inaction but observed that none of those cases provided any analysis or rationale and relied on evidence the parent failed to communicate with or support the child for the requisite "leaving" period to establish such "parental inaction." The Jacklyn F. court concluded evidence of failure to communicate with or support the child could not establish that the child had been "left" under section 7822. To so interpret the statute, the court explained, would render some of the statutory language surplusage. Although the court acknowledged a court could properly find a parent "left" the child despite court intervention, it concluded the facts before it did not support such a finding. The court stated,
"Appellant contested the grandparents' efforts to secure a court order taking custody of the minor from her. Once the guardianship was granted, appellant was no longer legally entitled to custody of the minor without further court order. At such point, the minor's custody status became a matter of judicial decree, not abandonment. We conclude appellant's conduct following the granting of the guardianship—which included sending 'stacks' of letters to the minor but failing to visit her—did not constitute 'parental inaction' amounting to a leaving. '[P]arental nonaction' must involve more than merely failing to communicate in order to give meaning to the statutory language requiring that the minor be 'left.' Consequently, we conclude there is insufficient evidence in this case to support a finding that appellant 'left' the minor for the requisite time period." (Jacklyn F., supra, 114 Cal.App.4th at p. 756.)
In our view, appellant's circumstances are more egregious than those of the mother in Jacklyn F. Although she was unaware of it, the mother in that case had visitation rights; she simply did not exercise them. Here, father had no visitation rights and poor prospects of acquiring them. Mother had no intention of consenting to a visit even if provided a negative drug test result. And there was no guarantee the court would have granted father visitation even if he petitioned the court. His was not a case of abandonment but, as in Jacklyn F., "a matter of judicial decree."
Further, appellant's conduct despite the court order does not evidence an intention to abdicate his parental role. Such was the case in In re Amy A. (2005) 132 Cal.App.4th 63 (Amy A.), which bears discussing if for no other reason than to illustrate that point.
B. Amy A.
After a brief marriage, the father in Amy A. suggested the mother move out of his parents' home in Indiana where they were living and return with their infant daughter, Amy, to California. In April 1999, the mother and child moved in with mother's family in San Bernardino where they lived for approximately six months. The mother tried to maintain contact with the father by calling him and sending letters and pictures of Amy, but the father refused her calls and made no attempt to contact her or Amy. When the mother moved into her own residence, she gave her new contact information to the father, his parents and his brother. In April 2000, the parents were granted a divorce. The mother was granted sole legal and physical custody. The father was given reasonable visitation in California and ordered to pay child support. When Amy had multiple medical emergencies, requiring surgery, the mother kept the father and his family informed. He did not call to inquire or send money to assist. (Amy A., supra, 132 Cal.App.4th at p. 66.)
The father had no contact with Amy from April 1999 to July 2001 when he appeared unannounced at mother's home while in California. He introduced himself to Amy as a family friend named "Q" and stayed for approximately 30 minutes. He saw Amy again several months later while the mother and Amy were visiting the maternal aunt in Indiana. Again, he introduced himself as "Q." In July 2002, the mother remarried and moved to San Diego. The father did not contact the mother or make any attempt to find out her new address even though he could have gotten it from her sister. In November 2004, the court granted a petition filed by Amy's stepfather to terminate the father's parental rights. (Amy A., supra, 132 Cal.App.4th at pp. 66-67.)
Citing Jacklyn F., the father argued on appeal the court order granting the mother custody precluded a finding he "left" Amy within the meaning of section 7822. The court disagreed, finding his circumstances supported a finding he left his child despite the court intervention. Specifically, the court cited the facts that he did not appear at the divorce proceedings, made no attempt to modify the custody order or exercise his visitation rights. He did not provide for Amy's care, participate in her medical emergencies or have any kind of parental relationship with her. The court stated, "[Father's] repeated inaction in the face of the custody order provides substantial evidence that he voluntarily surrendered his parental role and thus 'left' Amy within the meaning of section 7822." (Amy A., supra, 132 Cal.App.4th at p. 70.)
In stark contrast to appellant, the father in Amy A. had ample opportunity to exert a parental role in his child's life but rejected it. There was nothing about the custody order or the mother's willingness to facilitate contact that prevented him from pursuing a parental role in his daughter's life. Here, on the other hand, appellant's custody order precluded any contact absent discretion by Madison's mother, which she was not going to exercise.
We conclude appellant did not abandon Madison because he did not leave her within the meaning of section 7822. Therefore, the order terminating his parental rights must be reversed.
DISPOSITION
The order terminating parental rights is reversed.