In re Adoption of Andre F.

Filed 10/4/06 In re Adoption of Andre F. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Tony F. (appellant) is the father of Andre F. (the minor). He appeals from a judgment terminating his parental rights upon the petition of the minor’s stepfather, Jason W. (respondent). (Fam. Code, § 7822; further unspecified statutory references are to that code.) Appellant contends there is insufficient evidence he left the minor or intended to abandon him pursuant to section 7822.

Section 7822, provides, in pertinent part: “(a) A proceeding under this part may be brought where the child has been left . . . by one parent 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 . . . to abandon the child. (b) . . . 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 . . . .” Section 7822 applies only when a parent has “left” his or her child in the care and custody of another person with the intent to abandon the child. The term “left” connotes voluntary action.

The record shows that for over a one year period following a separation from his wife, appellant voluntarily left the minor with her and at best made only token efforts to see him. Appellant argues inter alia that the one-year requirement was not satisfied because during the year the minor was judicially taken from him when his wife filed a dissolution proceeding that placed the minor in her sole legal and physical custody without a visitation order and he thereafter was legally barred from seeing the minor. We disagree.

Appellant voluntarily failed to appear in the dissolution proceeding notwithstanding that he was given notice of the relief his wife sought and the court subsequently ordered, and he did not seek modification of the order until over two years after it was entered. Appellant cannot claim the refuge of a court order he impliedly consented to. There was no judicial taking of the minor.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Catrina E. is the mother of the minor. Catrina and appellant met in 1999 and later began dating. In August 2001, following a series of physical altercations between appellant, Catrina and members of her family, Catrina obtained a domestic violence restraining order prohibiting appellant from contacting or coming within 100 yards of her, her parents or her brother. Catrina and appellant later reconciled and married in April 2002.

The minor was born in June 2002, and lived with both parents until September or October 2002, when the parents separated and the minor moved into an apartment with Catrina and appellant moved in with his mother. Appellant never fed, changed or otherwise cared for the minor prior to the separation, and thereafter showed little or no interest in him. Moreover, while Catrina and appellant were in the process of separating, appellant urinated and defecated on Catrina’s and the minor’s belongings.

Following the separation, Catrina attempted to arrange for the minor to visit appellant and appellant’s mother. In October 2002, she terminated the first such visit when appellant was not present when she arrived to drop off the minor, and she found him intoxicated at a friend’s house. Later that month, appellant and appellant’s mother took the minor to a lake. That visit lasted all day and into the evening; however, the minor did not stay the night. In November 2002, Catrina brought the minor to a party at the home of appellant’s grandparents. That visit lasted approximately an hour and a half, and appellant was not present for the entire visit. Later that month, Catrina terminated a visit after appellant refused to get out of her car until she drove to an ATM and withdrew $80 for him, even after she explained that was the only money she had for food and supplies for her and the minor. At Christmastime 2002, the minor visited appellant and appellant’s mother for approximately one hour. In May or June 2003, Catrina, appellant’s mother and appellant celebrated the minor’s first birthday. That visit lasted approximately 45 minutes. Each of these visits (or attempted visits) was initiated by Catrina and/or appellant’s mother; none were initiated by appellant.

On November 20, 2002, Catrina filed a petition for dissolution of marriage and requested sole custody of the minor and “no visitation” for appellant.

Appellant showed up at Catrina’s work periodically between January and March 2003. During these exchanges, he asked only about Catrina and never about the minor. Appellant also telephoned Catrina sporadically between January and October 2003 and similarly asked only about her.

Appellant did not appear in the dissolution proceeding, and the divorce became final in June 2003. The judgment of dissolution granted Catrina sole legal and physical custody of the minor and appellant “no visitation.”

In August or September 2003, appellant showed up at Catrina’s apartment. She refused to let him in, and she and the minor drove him home. In October 2003, appellant called Catrina from a bus stop near her apartment and said he was going to come over unless she picked him up. She and the minor picked appellant up, took him to get something to eat and drove him home. Appellant expressed little or no interest in the minor during these encounters. The next day, appellant showed up at Catrina’s apartment, and when she refused to let him in, he kicked the door, cracking the frame. Catrina called police and appellant left. That was the last time appellant saw the minor, and it was only for a “second.” Appellant was convicted of stalking as a result of that incident and incarcerated from November 2003 until April 2004.

Catrina met respondent in November 2003, and they married in April 2004. On September 3, 2004, respondent filed a request to adopt the minor. Before respondent sought to adopt the minor, appellant never offered to provide financial support for the minor or asked for visitation. Nor could Catrina recall a single occasion following the separation and prior to the request to adopt being filed when appellant asked how the minor was doing.

The Sacramento County Probation Department (probation) mailed a certified letter to appellant advising him of respondent’s request. Appellant told probation he would not consent to the minor’s adoption. According to a report prepared by probation, “a criminal protective order was signed by the [c]ourt” in February 2003, appellant “was placed on 3 years informal probation for violating the restraining order” and was “ordered to have no contact with” Catrina until February 27, 2006.

On September 27, 2004, at Catrina’s request, the trial court renewed the 2001 restraining order. Appellant appeared at the hearing, and the court told him that if he wished to visit the minor, he had to file a motion for visitation.

On January 19, 2005, respondent filed a petition to declare the minor free from parental custody and control. Appellant appeared on May 12, 2005, in response to an order to show cause and stated he opposed the termination of his parental rights. The court appointed him counsel and ordered the matter be set for trial.

On August 1, 2005, respondent filed an amended petition, alleging, among other things, the minor had “been left by [appellant] in the care and custody of [Catrina] for a period of one year without any provision for the [minor’s] support [and without communication from appellant] with the intent on the part of [appellant] to abandon” the minor.

On September 27, 2005, appellant petitioned the court for visitation with the minor.

The trial on respondent’s petition commenced October 6, 2005. At trial, appellant disputed Catrina’s claims that he failed to care for the minor during the marriage and showed no interest in him after the separation. Appellant said he cared for the minor during the marriage and after the separation. He claimed that after the separation he asked Catrina about the minor and sought to visit him, but “she never would agree to bring [the minor] to see [him], [except for a] couple of times.” He also told the court that following his release from jail in April 2004, his goal was “to see my son again and move on and maybe try to find someone else, but I never wanted to give up on my son.” He said he attempted to file paperwork seeking visitation with the minor in May 2004; however, the paperwork was returned. He explained he did not pursue the matter further at that time because he did not think he would be successful at obtaining visitation until he completed a 52-week court-ordered anger management course. He completed that course on July 28, 2005.

Appellant said he did not attempt to contact Catrina after being released from jail in April 2004 because he was afraid of violating the restraining order, and he did not know where she lived or her telephone number. While he acknowledged he knew where her relatives lived and where she and her family attended church, he said he had been told he would be in violation of the restraining order if he attempted to contact her through third parties. Appellant also conceded that he did not “have any idea what [the minor’s] developmental needs [were] at th[at] time.”

The trial court concluded that “the elements under Family Code section 7822 have been established by clear and convincing evidence” and terminated appellant’s parental rights. While the court acknowledged appellant had “a lot of judicial hurdles to overcome to assert his parental rights,” the court found he understood he had “the option to modify the custody orders in the family law case but just didn’t do it.” The court observed that appellant “had the ability to get back involved in the child’s life and just didn’t take those steps under the statutory period.” The court found appellant’s testimony that he attempted to file paperwork seeking visitation with the minor in May 2004 not credible. The court determined appellant’s contact with the minor was “token at best,” noting that appellant’s mother “was the conduit” of any visit. The court also concluded that termination of appellant’s parental rights was in the minor’s best interests.

DISCUSSION

I.

Appellant contends there is no substantial evidence he “left” the minor in Catrina’s care and custody for one year as required by section 7822. We disagree.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence that is, evidence that is reasonable, credible and of solid value to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

The trial court’s order terminating appellant’s parental rights is based on section 7822, which provides, in pertinent part: “(a) A proceeding under this part may be brought where the child has been left . . . by one parent 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. (b) 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 . . . .”^[1]

Section 7822 applies only when a parent has “left” his or her child in the care and custody of another person with the intent to abandon the child. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) In this context, the term “left” connotes voluntary action. (In re Amy A. (2005) 132 Cal.App.4th 63, 69.) The threshold issue before the court “is whether the minor was ‘left’ within the meaning of the statute. The fact that a parent has not communicated with a child for a period of [one year] or that the parent intended to abandon the child does not become material under section 7822 unless the parent has ‘left’ the child.” (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.)

Substantial evidence supports the trial court’s implicit finding that appellant “left” the minor in Catrina’s care and custody for one year following their separation in September or October 2002.^[2]

Following the separation, appellant did not ask to visit the minor. The few visits that did occur were initiated by Catrina and/or appellant’s mother. Appellant did not inquire about the minor’s well being. Although he telephoned Catrina and stopped by her work and apartment, he asked only about her and never about the minor.

Appellant never assisted Catrina in supporting the minor. To the contrary, he took money he knew was to be used to purchase food and supplies for the minor. Appellant failed to appear in the dissolution proceeding even though Catrina sought sole legal and physical custody of the minor and “no visitation” for appellant and did not seek modification of the order granting her the relief she sought until September 2005. Finally, appellant intentionally engaged in conduct he knew or reasonably should have known would negatively impact his ability to have any type of relationship with the minor, namely showing up at Catrina’s apartment uninvited and violently kicking the door.^[3]

Citing In re Cattalini (1946) 72 Cal.App.2d 662 at page 665 and In re Jacklyn F., supra, 114 Cal.App.4th at page 755, appellant asserts he cannot be found to have “left” the minor because a court order granted Catrina sole custody and him no visitation.

In In re Cattalini, the issue was whether children had been left by the father in the custody and care of the mother when they were placed in the mother’s custody by a court order. (72 Cal.App.2d at p. 665.) Noting that “the term [‘left’] appears to connote voluntary action,” the court held “it may not be said that [the father] left his children in the care and custody of the [mother] 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.” (Ibid.)

In In re Jacklyn F., the issue was whether a child had been left by the mother in the care and custody of the grandparents when the grandparents were granted guardianship of the child. (114 Cal.App.4th at p. 756.) The court found that “[o]nce the guardianship was granted, [the mother] was no longer legally entitled to custody of the [child] without further court order. At such point, the [child’s] custody status became a matter of judicial decree, not abandonment.” (Ibid.) Although the court did “not discount the possibility that, under different circumstances, it might be proper to conclude that a parent has ‘left’ a child within the meaning of section 7822 despite court intervention,” the court concluded “this is not such a case.” (Ibid.) The court explained that the mother’s “conduct following the granting of the guardianship -- which included sending ‘stacks’ of letters to the [child] but failing to visit her -- did not constitute ‘parental nonaction’ amounting to a leaving.” (Ibid.)

Those cases stand for the proposition that 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, unless the parent’s subsequent non-action converts the judicial “taking” into a “leaving.” (In re Cattalini, supra, 72 Cal.App.2d at p. 665; In re Jacklyn F., supra, 114 Cal.App.4th at p. 756.) This case is different. Here, appellant left the minor in Catrina’s care and custody for at least seven months before the custody and visitation order was entered. Thus, the minor was not “taken” from appellant by judicial decree; appellant had long since relinquished custody and control of the minor to Catrina.^[4] Moreover, the failure of appellant to attend the dissolution proceeding without justification or oppose it in the face of notice of the relief Catrina was seeking implies a consent to the resulting order. The appellant cannot take refuge in a judicial order he did not oppose and impliedly consented to.

Even assuming for argument’s sake the order did amount to a taking, appellant’s subsequent inaction converted the taking into a leaving. (In re Amy A., supra, 132 Cal.App.4th at p. 70.) As previously noted, appellant did not seek to modify the order until September 2005 -- over two years after it was entered. Appellant contends “[t]here was no need to seek a modification of the no visitation order at first because Catrina facilitated visitation from 2002 until October 2003 . . . .” This assertion is not supported in the record. At trial, appellant testified Catrina “never would agree to bring [the minor] to see me, [except for a] couple of times.” Thus, there was a need to seek to modify the order, and appellant’s failure to do so converted any judicial taking into a voluntary leaving.

Appellant also notes that he was incarcerated in November 2003, and suggests he was precluded from seeking to modify the custody and no-visitation order until he was released in April 2004. His incarceration in November 2003, however, does not explain his failure to seek to modify the order between June and November 2003. Even assuming the separation did not occur until October 2002, as appellant appears to contend, the one-year statutory period expired in October 2003, prior to appellant’s incarceration. Accordingly, his purported inability to communicate with or inquire about the minor during or after his incarceration is irrelevant.

II

Appellant contends there was insufficient evidence to support the trial court’s implicit finding that he intended to abandon the minor during the statutory period. We disagree. “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 Amy A., supra, 132 Cal.App.4th at p. 68.) Intent is a factual question that may be found by objectively measuring the parent’s conduct. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) The court considers the frequency of the times the parent tried to communicate with the child, the genuineness of the effort under all the circumstances and the quality of the communications that occurred. (Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) A parent’s failure to communicate with his or her child for a period of a year is “presumptive evidence of the intent to abandon.” (§ 7822, subd. (b).) Section 7822, subdivision (b) provides that if a parent makes “only token efforts to . . . communicate” a court “may declare the child abandoned by the parent . . . .” To overcome the statutory presumption, the parent must make more than token efforts to communicate with the child. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212.)

Here, Catrina testified there were four visits. None of the visits were initiated by appellant. Only one visit lasted longer than a couple of hours. Although appellant continued to communicate with Catrina during the statutory period, he never asked about the minor.^[5] As the court found, “any contact” between appellant and the minor was “token at best” and appellant’s mother “was the conduit” of any visit. Substantial evidence supports this finding as well as the trial court’s implicit finding that appellant had the requisite intent to abandon the minor.

III

Finally, appellant contends the trial court erred “when it included the [minor’s] best interests as a determinative factor to decide that abandonment under section 7822 had been proven, where the elements of section 7822 were not all satisfied.” The record does not confirm this contention. The court found “[t]here is clear and convincing evidence that [the minor] should be declared free from the custody and control of [appellant], pursuant to Family Code § 7822 . . . .” As detailed above, the court’s finding is supported by substantial evidence. That is all that is required. That the court also found termination of appellant’s rights was in the minor’s best interests does not undermine the correctness of its decision under section 7822.

DISPOSITION

The judgment terminating appellant’s parental rights is affirmed. Costs are awarded to petitioner and respondent.

BLEASE , Acting P. J.

We concur:

DAVIS , J.

BUTZ , J.

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^[1] The amended petition was also filed under section 7825, which permits a proceeding to free a child from parental custody or control to proceed where a parent is convicted of a felony and the facts of the crime “are of such a nature so as to prove the unfitness of the parent . . . to have the future custody and control of the child” and section 8604, subdivision (b), which permits an adoption to go forward without the consent of a parent who has willfully failed to communicate and support a child for one year. Respondent later withdrew the allegations related to section 7825, and the trial court made no ruling on the applicability of section 8604.

^[2] Contrary to respondent’s assertion, appellant’s failure to care for or show an interest in the minor prior to the separation does not support a finding that appellant “left” the minor. To leave a child for purposes of child abandonment “requires one to have completed a physical act of departure.” (In re Justin G. (1984) 151 Cal.App.3d 526, 529.) “[N]eglect is not intended as consonant with abandonment. Therefore, neglect of a child in one’s own home cannot be equated with or treated as a leaving of the child.” (Id. at p. 530.)

^[3] There was conflicting evidence as to the number, quality and dates of the visits and whether appellant ever asked about the minor’s well being. However, “[t]he power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court, and its findings of fact, express or implied, must be upheld if supported by substantial evidence.” (In re Carpenter (1995) 9 Cal.4th 634, 646.)

^[4] On appeal, appellant also appears to suggest that the restraining order further impeded his ability to visit the minor. This suggestion is not supported in the record, at least with respect to the relevant time period. At trial, appellant testified that the restraining order did not stop him from contacting Catrina until after he was released from jail in April 2004. Indeed, appellant continued to contact Catrina until October 2003, and it was his last contact in October 2003 that led to his incarceration.

^[5] While there is also evidence appellant did not provide any financial support for the minor, and at best, made only token efforts to do so, an intent to abandon cannot be based on failure to provide support in the absence of a demand for support. (In re George G. (1977) 68 Cal.App.3d 146, 159.) There is no evidence Catrina ever demanded any support from appellant.