In re Anthony O.

Filed 8/1/06 In re Anthony O. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.

Rafael O. (father) appeals from a judgment declaring his minor son, Anthony O., free from his custody and control based upon abandonment (Fam. Code, §§ 7820, 7822^[1]) on the petition of Anthony O.'s maternal grandparents, Carl and Nancy F. (grandparents). Father contends that his efforts to visit and support his son were not merely token, and there is no substantial evidence to support the juvenile court's finding of abandonment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2005, grandparents filed a verified petition under section 7822 to free Anthony from father's custody and control, alleging Anthony's natural parents had left the boy in their care since at least February 2004 and since that time father had not paid support or communicated with Anthony for the preceding six months. In connection with the petition, Tina Jako, a protective services worker with the San Diego County Health and Human Services Agency, submitted a report of her interview with petitioners, which in part chronicled the natural parents' relationship and father's visitations with Anthony. Jako's effort to contact father was unsuccessful; in October 2005, Jako sent a certified letter notifying father of the court action seeking to terminate his parental rights, informing him that she had been assigned to conduct an investigation for the juvenile court, and asking him to contact her to discuss his wishes. She received the letter back with an unidentifiable signature and never received any contact from father.

Jako reported that Anthony's natural parents met and started dating in 2002, were married in May 2003, and separated approximately three months later in August 2003. Anthony was born in October 2003, with father present. After Anthony's birth, he and his mother lived with petitioners for a couple of weeks. In November 2003, the mother reconciled with father and they and Anthony lived together as a family until December 2003, when they separated again. On January 1, 2004, Anthony was hospitalized and remained in the hospital for almost one week. On his release, he returned to live with grandparents.

According to Jako, father visited Anthony once at grandparents' home in March 2004 and thereafter had no contact with him. Father did not send cards, letters or gifts to Anthony, and he did not provide financial support for his son. Jako reported that grandparents believed father always had the means to contact Anthony in that he had their address and telephone number. Jako further noted that Anthony's mother signed an Independent Adoption Placement Agreement in June 2005.

Jako observed that grandparents had provided Anthony with care for almost two years, and father's complete lack of contact and support provided presumptive evidence of his intent to abandon Anthony. She opined that adoption appeared to be in Anthony's best interest, and recommended that Anthony be declared free from father's custody and control. In support of their petition, grandparents requested that the court take judicial notice of the file in a related domestic case between mother and father. The file showed that shortly after she resumed living with grandparents in January 2004, mother requested and obtained a restraining order against father, seeking an order for legal and physical custody at the same time. The restraining order was continued and set to expire on February 19, 2004. On that day, mother and father entered into a stipulation and order providing that mother would reside with grandparents at their home on Windswept Terrace in San Diego, and father and his own mother would be allowed visitation with Anthony at that residence between specified times on Wednesdays and Saturdays, to be supervised by Carl F. or any other adult agreed upon by the parties or directed by the court.

At the January 2006 hearing on the petition, Jako testified that after she sent her certified letter to father, she met him in court and gave him her business card. At that time, Father acknowledged his signature appeared on the certified receipt for Jako's letter, but he told Jako he did not recall receiving the letter. Jako testified that even after she personally handed him her card, father did not contact her for an interview. Grandfather confirmed that father's sole visit occurred in March 2004 and lasted approximately 20 minutes. He testified that Anthony did not know who his father was; that father had not called to ask about Anthony's care in the preceding six months, sent any cards or Christmas presents, or provided any financial support for Anthony. Grandfather testified he and his wife took care of all of Anthony's physical and emotional needs. He stated they loved Anthony, provided him security and consistency, made him their first priority, and met all of his needs. According to grandfather, he and his wife were the only caretakers that Anthony knew.

Father testified that he lived with Anthony and his mother off and on for a period of about six months after Anthony was born. He acknowledged Anthony's hospitalization, and testified he did not visit Anthony during that hospitalization and did not learn Anthony had been placed with grandparents until almost a month later. According to father, he had no choice in that placement because it was under a restraining order, and father thought he was not able to talk with or touch Anthony as a result. Father testified that while he felt he had a responsibility to support Anthony, he was afraid to make contact unless someone made contact with him and was told he could not call grandparents' house because of the restraining order. Although he had a copy of the restraining order, father stated he was not used to such legal documents and it was not explained to him very well.

Father admitted he had no contact with grandparents since the restraining order was issued, but that he tried to have visitation with Anthony through his sister, who would speak with Anthony's mother and pass on presents and "diapers and stuff" that father gave her. Father testified that through his sister, he had visits with Anthony and his mother at a park without grandparents' knowledge; that he "could see [Anthony], see him over here and see him and say hi and play with him and everything. So I watched." He testified that if he had been contacted to provide money, he would have given it because Anthony was his son. Father stated it was never his desire to abandon his son; that he wanted to have visitation and reunite with him.

On cross-examination, father admitted his signature appeared on a March 4, 2004 custody and visitation order permitting him and his mother Lupe supervised visitation at grandparents' house during specified times two days a week, and that he was represented by counsel at the time he signed the order. While he believed there was a restraining order in place prohibiting him from contacting Anthony's mother, father testified he did not think he was violating it by seeing her with Anthony because she called him to ask if he wanted to see his son. He testified Anthony's mother would call his sister through a third party to set up visits. Father stated he lost count of the visits, which lasted from a half hour to an hour and a half; he testified they occurred "a couple times. More than – a lot of them basically. . . . I know it has been several." Father testified his first visit with Anthony without grandparents' knowledge occurred in April 2004, and the last was a couple of days before Christmas Eve.

Father also admitted receiving Jako's letter in October 2005, but he testified he had no questions and did not know he could call her and ask what was happening. According to father, Jako did not ask him to contact her or give him her card when he saw her in court, she only told him he would get a public defender. Father testified he did not have any questions for Jako; that he would call the public defender because he thought the public defender was the only person he had to speak with.

Anthony's mother testified that "it was definitely understood that [father] had visitation rights" to be supervised by grandfather (her father) or another adult. She believed father visited Anthony at grandparents' house three or four times, but that he was "intimidated" by her father. She admitted she had set up the visits between Anthony and father outside her parents' house by contacting father's sister or mother; father did not set up those visits. She testified that father saw Anthony "maybe . . . three or four" times between the time of the restraining order and the present hearing. On cross-examination, mother admitted she knew she was violating the court order by permitting these visits outside grandparents' home, and that she did not tell them because they would be mad at her. According to mother, father had a maximum total of about an hour or two of visitation with his son from the time Anthony was placed with grandparents to the present time, and had bought Anthony Christmas presents, diapers and formula. Mother testified father had offered her money, and provided her with a cell phone and car to see her son. Mother admitted Anthony perceived grandparents as his parents.

The court took judicial notice of the documents in father and mother's domestic violence case, and also of the fact that father had completed a 52-week domestic violence class. It questioned father's credibility as to the number and extent of his purported visits with Anthony in view of father's inconsistent testimony on the issue, and concluded to the extent visits took place they were merely token. The court further found father did not support Anthony during the time and had not been acting as a father toward him. Granting grandparents' petition, it declared Anthony free from father's custody and control. Father timely filed this appeal.

DISCUSSION

I. Standards for Abandonment/Standard of Review

Section 7822 provides in part: "(a) A proceeding under this part may be brought where the child has been left . . . by . . . the sole parent in the care and custody of another for a period of six months . . . 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 . . . . " Intent to abandon is a question of fact that may be found by objectively measuring the parent's conduct. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) The juvenile 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.) " ' " '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 Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) If a parent has made only token efforts to support or communicate with his or her child, the court may declare the child abandoned by the parent. (Ibid.) Findings of an intent to abandon under section 7822 must be supported by clear and convincing evidence. (§ 7821.) "However, '[t]hat standard is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.' " (In re B.J.B., supra, 185 Cal.App.3d at p. 1211.)

Under that review standard, we " 'must accept as true all evidence tending to establish the correctness of the findings of the trial judge. All conflicts in the evidence must be resolved in favor of the respondent[ ] and all legitimate and reasonable inferences must be indulged in to uphold the judgment. . . . [W]henever a finding or judgment of the trial court is attacked as being unsupported, the power of the reviewing court begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusions reached by the trial court. . . . If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed. [¶]

. . . [A]bandonment and intent . . . are questions of fact for the trial judge. . . . His [or her] 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 [or is not] an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment [citations]. This is true, also, on the question of intent.' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)

II. Substantial Evidence Supports the Juvenile Court's Finding of Abandonment

Father contends there is no substantial evidence supporting the juvenile court's finding of abandonment; specifically, that there is no evidence of his failure to provide support or communication, or his intent to abandon Anthony.^[2] Without addressing grandfather's testimony about father's failure to communicate with Anthony since March 2004 or offer any financial support whatsoever for him, father argues his March 2004 visit as well as the visits he had with mother and Anthony in the park, and the fact he provided Anthony with gifts, formula and diapers, demonstrates he "did what he could" in view of his discomfort with grandfather, and did not intend to abandon his son.

We view the evidence differently. While father accurately states the standard of review under which this court must operate, he does not apply it in his briefing. As explained above, we must disregard every fact contrary to the judgment and presume the truth of every fact supporting the judgment that can be reasonably deduced from the evidence. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1313.) Moreover, the trial court made express credibility determinations in reaching its findings. "The power to judge the credibility of witnesses and to resolve conflicts in the testimony is vested in the trial court" (In re Carpenter (1995) 9 Cal.4th 634, 646) and it is the trial court's exclusive province to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Barnes (1986) 42 Cal.3d 284, 306.) Under these rules, "the testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions." (People v. Leigh (1985) 168 Cal.App.3d 217, 221.)

In its ruling, the court observed that father did not know or seem to care about Anthony's living arrangements or what Anthony was doing, and that father's discomfort with grandfather did not prevent a finding of abandonment. It found that, to the extent visits had taken place, they were nothing but token; that father had not supported Anthony during the past two years and had not been acting as a father toward him.

These findings, and the juvenile court's implicit finding of father's intent to abandon Anthony, are supported by substantial evidence. Viewing the evidence in the light most favorable to the juvenile court's order, the record shows that since March of 2004, when father visited Anthony for 20 minutes at grandparents' home, father's only contact with Anthony was initiated by Anthony's mother and collectively lasted no more than two hours. Mother acknowledged that everyone understood father had a right to visitation with his son at grandparents' home, and yet the record reflects a total absence of any effort on father's part to initiate communication with Anthony during the 19 month period before the hearing on grandparents' petition, either by contacting grandparents over the telephone or sending cards or letters. Father's intent to abandon is supported by the fact he did not attempt to obtain a modification of the custody order, and he did not meaningfully exercise the visitation rights given to him in that order, which he acknowledged at the hearing. (Accord, In re Amy A., supra, 132 Cal.App.4th at p. 71.) As this court has explained: "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." (Id. at p. 68.) Here, the relevant statutory period was six months. (§ 7822, subd. (a).) Under the circumstances, the trial court could reasonably conclude by clear and convincing evidence that father's minimal and perfunctory visits, which were initiated by mother and thus entirely dependent on mother's willingness to make the child available, were merely "token" within the plain meaning of the statute.^[3] Father's inaction and his token visits during the six month period raise a statutory presumption of his intent to abandon, a presumption that father did not overcome.^[4]

The foregoing conclusion ends the substantial evidence inquiry, since the showing under section 7822 is two-pronged. That is, the statute allows a finding of abandonment if a parent fails to support the child or fails to communicate. (§ 7822, subd. (a).) The failure to support or the failure to communicate is presumptive evidence of an intent to abandon. (§ 7822, subd. (b).) Nevertheless, we may also conclude there is substantial evidence for the juvenile court's finding that father did not support Anthony for the statutory six month period. As grandfather testified, father provided no financial support to grandparents for Anthony's care. The fact grandparents did not ask father to make any payments to them does not negate a finding of abandonment as a result of father's lack of support. (See In re Amy A., supra, 132 Cal.App.4th at p. 71.) The trial did not have to, and in fact did not, accept father's testimony that father provided mother with gifts for Anthony, diapers, formula and money. But even assuming father gave Anthony's mother those items, it is apparent father's efforts were only the result of mother's initiation of contact with him, not of his contact with her. In any event, it is not evidence of father providing any financial support to Anthony's caretakers.

We are not persuaded by father's reliance on In re Estate of Barassi (1968) 265 Cal.App.2d 282, In re Jack H. (1980) 106 Cal.App.3d 257, or In re Baby Boy M. (1990) 221 Cal.App.3d 475. In Barassi, the grandparents admittedly actively discouraged the father's visits with his children, in part due to the fact father and mother's marriage was characterized by rancor and discord. (In re Estate of Barassi, 265 Cal.App.2d at pp. 283, 289.) On learning of his former wife's death, father took "prompt and vigorous action to establish his rights to custody of his children." (Id. at p. 289.) In view of that evidence, the appellate court was unable to conclude father in that case intended to abandon his children. (Ibid.) Barassi is plainly distinguishable from the circumstances present in the present case, where there is no evidence grandparents discouraged visitation, and father made no independent efforts to visit or regain custody. More fatally, the abandonment statute relied upon in Barassi did not include a presumption of abandonment after one year of no contact, unlike section 7822. (See id. at p. 288.) Barassi's holding is contrary to case law interpreting the current statute to find abandonment based on the parent's intent to abandon for the relevant statutory period, not permanently. (Compare Barassi, supra, 265 Cal.App.2d at p. 288 [stating issue in that case was whether father's conduct showed "intent to relieve himself permanently of all parental obligations"; emphasis added] with In re Daniel M . (1993) 16 Cal.App.4th 878, 881 [rejecting interpretation of current statute to require "an intent to abandon permanently"].) As for In re Jack H., the record does not show that the juvenile court exercised an improper "pure quantitative test" to determine whether father's contacts with Anthony were token. (In re Jack H., 106 Cal.App.3d at p. 265 ["A pure quantitative test as basis for a court's finding of 'token' communication is not supported by case law"].) On the contrary, here the court in fact examined "the genuineness of [father's] communications under all the circumstances" as that decision encourages. (In re Jack H., 106 Cal.App.3d at p. 265.) Finally, in In re Baby Boy M., the appellate court, relying on Guardianship of Rutherford (1961) 188 Cal.App.2d 202, noted that a parent's "failure to pay maintenance when no demand therefore has been made" by itself does not prove an intent to abandon. (In re Baby Boy M., 221 Cal.App.3d at p. 482.) Here, the juvenile court's decision was not based solely on father's failure to pay support. The juvenile court's determination of abandonment was supported by other evidence, including father's inaction and token visits.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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^[1] All statutory references are to the Family Code unless otherwise indicated.

^[2] Father does not meaningfully challenge the evidence that he "left" Anthony for more than six months in the care and custody of grandparents. (§ 7822; see In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.) In this context, the term "left" connotes "voluntary action." (In re Amy A. (2005) 132 Cal.App.4th 63, 69.) Indeed, the record shows father stipulated to an order granting grandparents custody and control of Anthony and permitting him only supervised visitation rights.

^[3] Merriam-Webster's Collegiate Dictionary (11th ed. 2006), page 1314, defines "token" as "representing no more than a symbolic effort: minimal, perfunctory."

^[4] Father suggests intent to abandon cannot be found where his visits were hindered because he felt "very uncomfortable" in the presence of grandparents. Father's testimony was only that he "had kind of negative feeling [sic] from [grandparents], so I couldn't talk to them, or really didn't feel right." The record does not contain evidence from which we could conclude he was legitimately intimidated by grandparents to such an extent as to negate his intent to abandon Anthony.