Opinion
F076027
03-08-2018
In re ELIJAH Z., a Person Coming Under the Juvenile Court Law. RUBEN S., Plaintiff and Respondent, v. MICHAEL R., Objector and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Objector and Appellant. Mary Steele for Plaintiff 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VAD008191)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. David C. Mathias, Judge. Roni Keller, under appointment by the Court of Appeal, for Objector and Appellant. Mary Steele for Plaintiff and Respondent.
Before Levy, Acting P.J., Smith, J., and Meehan, J.
-ooOoo-
Michael R. appeals an order declaring his minor son, now 12-year-old Elijah Z., free from his custody and control under Family Code section 7822. Section 7822 provides that a petition to free a child from a parent's custody and control may be granted where "one 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).) Michael contends the evidence does not support the trial court's finding that he intended to abandon Elijah within the meaning of section 7822. We affirm.
Statutory references are to the Family Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
Elijah, who is autistic in the high functioning range, lives with his mother Y.Z. (mother), stepfather, Ruben, and his seven-year-old half sister, A.S. Ruben is A.S.'s biological father.
Elijah was born in October 2005. Michael, his biological father, and mother dated off and on in high school. They never cohabited nor were they ever married. Michael claimed Elijah as his son. According to mother, Michael was not happy to discover that she was pregnant. He was not involved with her during her pregnancy or present when Elijah was born. Mother took Elijah to see Michael for the first time when Elijah was approximately two to three weeks of age. She supervised visits between them three times a week. As Elijah got older, Michael began having unsupervised and overnight visits. In October 2011, Michael was granted three weekend visits a month with Elijah but did not exercise his full visitation rights.
Ruben and mother began dating after high school. Ruben met Elijah when he was two to three months old and became Elijah's full-time babysitter. Ruben and mother had a daughter, A.S., who was born in September 2010. Ruben moved in with mother, Elijah and A.S. in 2011 and he and mother were married in August 2012.
In October 2016, Ruben filed a petition to declare then 11-year-old Elijah free from Michael's custody and control, so Ruben could adopt him. Ruben alleged Michael abandoned Elijah by leaving him in mother's custody for more than a year without providing for his support or communicating with him with the intent to abandon him.
The court investigator recommended the trial court grant Ruben's petition. Mother told the investigator she maintained physical custody and control of Elijah since birth and was his primary source of financial support. Michael last contacted Elijah in April 2015 when they spent a few hours celebrating Michael's birthday. She refuted Michael's statement that he visited Elijah on Christmas or Christmas Eve 2015 and said he visited Elijah minimally and sporadically in 2014. Throughout Elijah's life, Michael inconsistently requested holiday visitation. As far as telephone calls, mother said Michael called to discuss excusing his child support arrears, not to speak to Elijah or check on his well-being. Michael did not provide any financial support from 2014 to October 2016. Mother supported Ruben's petition to adopt Elijah, stating Ruben had been his father figure for the vast majority of his life and provided for his financial, emotional and physical well-being.
Michael told the investigator he was unemployed but received an annual stipend of $3,900 as a high school basketball coach and was taking classes to become an ordained minister. He was also completing a bachelor's degree, which he anticipated completing in another six to eight months. He was engaged and had two other young children. Michael stated he had been involved in Elijah's life for 10 years. He visited Elijah two to three times a week until he turned one year of age and then visited him twice a week until he turned three. From the ages of three to five years, Michael had ongoing visits with Elijah but was unable to recall the frequency. From ages five to 11 years, he visited Elijah one weekend a month.
Michael admitted having a hectic schedule over the prior year but did not intend to abandon Elijah. He attempted to stay in contact by telephone, usually in the evening around 7:30 p.m., but mother would not allow him to speak to Elijah, stating it was too late. Mother sometimes allowed him to talk to Elijah if he called earlier in the day. Michael saw Elijah in August or September 2016 at his school when he was there to pick up other children. He also saw Elijah having lunch with Ruben in public possibly in July 2016. He did not initiate contact with Elijah either time. He last spent time with Elijah in April or May 2016. He thought the occasion was his (Michael's) birthday but was not sure and could not provide details. Prior to that, he believed he saw Elijah in December 2015 during the Christmas holiday but could not remember if it was Christmas Eve or Christmas day. He also visited Elijah on Thanksgiving and Halloween 2015.
Michael acknowledged being unintentionally absent from Elijah's life for the prior year and a half, which he attributed to his attendance in "Bible College." In April 2016, he asked mother to participate in mediation so that he could request more time with Elijah, preferably weekdays. However, they did not meet for mediation. According to mother, they had a scheduled session and both signed in at the family court services office but Michael immediately left without explanation. Michael told the investigator, he financially supported Elijah from infancy and always provided him food, clothing and school supplies. He admitted not paying court-ordered child support or providing mother direct financial assistance the previous nine months. Prior to that, he gave her $50 or $75 once a month or biweekly. He was positive he gave her $100 toward child support in November and December 2016.
Ruben told the investigator he loved his "son" Elijah and wanted to adopt him and give him his surname. He had been Elijah's father figure since Elijah was one year of age and they shared an "undeniable bond."
Elijah told the investigator he wanted Ruben to adopt him. He said he loved Ruben and felt safe with him. Ruben met all his needs and they had fun together. As to Michael, Elijah said, "I just met him like two years ago and he lives far away." He could not remember the last time he saw Michael but said he talked to "Dad-Michael" on the occasions Michael called for his birthday and Christmas. He expressed sadness and stated, "I don't know why he stopped calling me." Elijah stated he did not want to live with Michael and was only willing to visit with him for one hour if ordered by the judge. Elijah also stated he was happy living with mother, Ruben and A.S. He said he wanted Ruben to live with him "forever."
In her report to the trial court, the court investigator opined Michael made token efforts to maintain contact with Elijah and provide him financial support based on his statements to her. Meanwhile, Elijah had a stable, close and loving relationship with Ruben and an age appropriate understanding of the petition. He clearly conveyed his desire to be adopted by Ruben.
Elijah's attorney also recommended the trial court grant Ruben's petition. She summarized an interview she conducted with Elijah on February 23, 2017, in a filed report. Elijah presented with a happy demeanor, willing to answer her questions. He stated enthusiastically and with a wide smile that he loved Ruben and wanted Ruben to adopt him. When asked what he recalled about Michael, Elijah said he remembered Michael visiting him in the hospital but did not remember what Michael looked like. When told Ruben would be his "only" father if he adopted Elijah, Elijah smiled and responded positively to that idea. His attorney believed Elijah understood her questions and their implications.
In April 2017, the trial court held a hearing on Ruben's petition. Ruben's attorney called mother who testified Michael last saw Elijah on December 22, 2015, the day before he was discharged from a three-day hospital stay. She contacted Michael to tell him Elijah had been hospitalized. Michael visited him for about an hour on December 21 and a total of two hours on December 22. Ruben's attorney questioned her about Michael's telephone calls to her following Elijah's hospitalization, using her telephone records to refresh her recollection. Michael contacted her on Christmas day 2015. They decided Elijah should stay home given his recent discharge from the hospital. Michael telephoned her next on March 15, 2016, to discuss dropping her claim for child support arrears. On April 11, Michael called to tell her he decided they should go to mediation so that she would drop the child support case. He called again on April 14 to discuss mediation and child support. On May 9, he called and asked if she could drop his back pay and for him not to pay child support. The next telephone contact was on June 19, when she and Elijah called Michael for Father's Day. Michael called next on October 18 to discuss child support. Michael did not ask to speak to Elijah or visit him during any of the calls he initiated to mother. The court admitted mother's telephone records into evidence.
On cross-examination by minor's counsel, mother testified she would have made Elijah available for a visit during any of her conversations with Michael if he had asked.
Ruben testified he moved in with mother when Elijah was approximately five years old. He took care of Elijah as an infant and took him for his first haircut when he was one year old. After that, they had a "boys' day out" every week, going to get their hair cut or out to eat. He and mother also took Elijah school shopping every year and purchased his sport jerseys and equipment. He and Elijah spent time together, playing with Elijah's toys and video games, watching television, playing football and mowing the lawn. Elijah called him "dad" when he was very young until Michael told him Ruben was not his father and to never "call him dad." They agreed Elijah could call him "Ruben" or "stepdad." He said he loved Elijah and was prepared to support him in every way.
Michael testified that, as a young child, Elijah came to his house. They played with Elijah's leap pad and played catch in the backyard. He last visited Elijah in April 2016 for his (Michael's) birthday. He picked him up in the evening on a school night and they spent a few hours together, eating dinner and having cake. He contacted mother to speak to Elijah but was unsuccessful because, when he called in the morning, Elijah was at school. When he called in the evening, mother told him it was too late because they went to bed around 7:30 or 8:00 p.m. At other times, Elijah was in the bathtub.
In February 2016, Michael and mother tried to work out a visitation arrangement with the help of his youth pastor. Michael was in Bible college and hoped to arrange a time that was suitable for them both. Instead, mother wanted full custody of Elijah and offered to forfeit child support in return, which Michael rejected. Unable to reach an agreement, they sought mediation. The court scheduled a mediation in April 2016, which Michael attended. However, he and mother could not locate each other so he left. Mother rescheduled mediation but he was unable to attend because he had a prior work obligation to coach the girls' basketball varsity team.
Michael further testified he attended school on weekends to get his bachelor's degree in a year and a half. He attended three hearings related to his child support case in the course of which his driver's license was suspended. He owed approximately a $1,000 in arrears and paid "lump sums" of $50 to $100 a month for support. These amounts were not the result of a payment arrangement through the child support agency.
On cross-examination by minor's counsel, he testified the car he drove that night in April 2016 was red, the birthday cake was white and Elijah played with his brother.
Elijah was called by minor's counsel as a rebuttal witness. Elijah testified he went to Michael's house "last year," but denied ever having cake with him. He did not know whether Michael ever picked him up in a red car. He did not remember a red car. When asked whether he had a brother, he answered, "No." Asked whether he knew anyone named Elias, he said Elias was his younger brother. He said, "I think I know him, but not last year." He last saw Elias four or five years before and had cake with him four years before.
After considering the evidence, the trial court granted Ruben's petition and terminated Michael's parental rights under section 7822. The court found Michael had been without Elijah and without communication for more than a year. When Michael saw Elijah, it was less than token as far as building a relationship with him and evidenced an intent to abandon him under the statute. The court determined that granting the petition was in Elijah's best interests to ensure permanency and stability for him.
DISCUSSION
Michael's sole issue on appeal is that the evidence was insufficient to support the trial court's finding that he abandoned Elijah within the meaning of section 7822. A. General Legal Principles
Section 7800 et seq. governs proceedings to have a minor child declared free from a parent's custody and control. (§ 7802; Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1009 (Allison C.).) "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).)
"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 the 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).)" (Allison C., supra, 164 Cal.App.4th at p. 1010.) Token efforts to support or communicate with the child will not overcome this presumption. (§ 7822, subd. (b); In re A.B. (2016) 2 Cal.App.5th 912, 923.) The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period. (In re Daniel M. (1993) 16 Cal.App.4th 878, 885 [construing the predecessor statute].)
We review the family court's findings under section 7822 for substantial evidence. Our review is deferential. "Abandonment and intent ' "are questions of fact for the trial judge .... [The trial court's] decision, when supported by substantial evidence, is binding upon the reviewing court. An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment [citations.]" ' [Citation.] 'The appellant has the burden of showing the finding or order is not supported by substantial evidence.' " (Allison C., supra, 164 Cal.App.4th at p. 1011.) We conclude below that Michael has not met this burden. B. Abandonment under Section 7822
Michael first contends he did not "leave" Elijah with mother for purposes of section 7822. Rather, she and Ruben were trying to coerce him into relinquishing custody of Elijah in exchange for forbearance of child support and attempting to "phase him out" by thwarting his contact with Elijah. Michael's argument would be apt if supported by the record. (In re Jones (1955) 131 Cal.App.2d 831, 834-835 ["Abandonment is not established by acts of relinquishment committed under circumstances of coercion."].) However, there is no evidence other than Michael's assertion that mother offered to forego child support for full custody. Nor is there evidence she tried to prevent Michael from being involved in Elijah's care. On the contrary, she contacted Michael to tell him Elijah was in the hospital and cooperated in his effort to mediate a visitation schedule.
Michael next contends he made more than token efforts to support and communicate with Elijah. Specifically, he points to contact with Elijah for Halloween, Thanksgiving and Christmas 2015, his hospital visits with Elijah in December 2015, their celebration of his birthday in April 2016 and to seeing Elijah in public with Ruben in July and August or September 2016. He also points to his telephone conversation with Elijah on Father's Day 2016 and his many attempts to speak to Elijah by telephone. Michael also asserts he was trying to pay child support to the best of his ability while unemployed and attending school.
The juvenile court credited only two actual contacts between Michael and Elijah in the year preceding the filing of Ruben's petition in October 2015: Michael's hospital visit in December 2015 and Elijah's telephone call to him on Father's Day in June 2016. We glean this from the court's questioning of Michael and Ruben's attorneys during argument. The court challenged the statement by Michael's attorney that Michael demonstrated "every intention of maintaining his parental rights over Elijah" as overstating the evidence. The court stated:
"That's a tough argument. There's an instance in December where he was called and the evidence shown is he wouldn't have even known the child was in the hospital without a phone call from mom and then a phone call from the child on Father's Day, which tells me he didn't even call his child on Father's Day, a day that is reserved for son and father."
Of Ruben's attorney, the court asked:
"If the petition was filed in October 2016 and the testimony is that he came and visited the child in the hospital in December 2015, which is within a year of filing the petition, does that make a difference in this case?"
Ruben's attorney responded the court should consider Michael's visits to Elijah "very minimal token efforts" under the statute.
In light of the evidence, the question becomes whether Michael's efforts to communicate with Elijah were more than "token." There is no bright-line rule for what constitutes "token" efforts to communicate. In determining whether a parent's efforts to communicate are token, the court may consider the number and frequency of his or her efforts to communicate with the child, the genuineness of the efforts under the circumstances and the quality of the communication that occurs. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.)
Here, there is scant evidence that Michael attempted to contact Elijah. Even crediting Michael's testimony that his phone calls to mother were an attempt to speak to Elijah, he only called her six times in the 11 months preceding October 2016; hardly a genuine effort to speak to his son. Further, there is no evidence their actual contact was of significant quality, especially in light of their short duration; several hours over two days in the hospital in December 2015 and a telephone conversation the following June.
Based on the foregoing, we conclude substantial evidence supports the trial court's finding that Michael abandoned Elijah. We also conclude, contrary to Michael's contention, substantial evidence supports the court's finding Elijah's interests were best served by terminating Michael's parental rights.
When a court finds abandonment, it must consider the child's best interests before deciding whether to terminate parental rights. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 171.) When considering whether to terminate a parent's rights, the court must liberally construe section 7822 to "serve and protect the interests and welfare of the child." (§§ 7800, 7801.) In doing so, the court "shall consider the wishes of the child, bearing in mind the age of the child ...." (§ 7890; In re B.J.B., supra, 185 Cal.App.3d at p. 1208.)
Michael argues it was not in Elijah's best interest to terminate his parental rights because he identified Michael as his father and was sad that Michael stopped calling him. It is true Elijah knew that Michael was his father and he expressed sadness that Michael no longer called him. He also remembered Michael visiting him in the hospital. However, he did not remember what Michael looked like and was adamant that he would only visit him for an hour. At the same time, he enthusiastically declared his love for Ruben and stated he wanted to be adopted.
We find no error and affirm.
DISPOSITION
The order is affirmed.