In re Marco R.

Filed 3/13/07 In re Marco R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Amalia L. Meza, Judge. Affirmed.

Jason T. appeals a judgment denying his petition to terminate Christian R.'s parental rights to Marco R., Christian's biological son, on the basis of abandonment under Family Code section 7822.^[1] Jason contends the evidence was insufficient to support the trial court's finding that Christian successfully rebutted the presumption of abandonment. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Marco is the son of Alana T. and Christian. Alana and Christian met as high school students in 1995. In June 1999, Christian enlisted in the Marine Corps and learned that he was scheduled to be stationed in Okinawa, Japan. Before Christian moved to Japan, he and Alana were married. Alana subsequently enlisted in the Marines and was stationed in Japan in July 2000. In May 2001, Alana gave birth to Marco. Christian was present at the hospital when Marco was born and is listed on Marco's birth certificate as the father. Alana and Christian remained on active duty in the Marine Corps and lived together as a family in Japan until late 2002.

In 2002, Christian initiated the process of obtaining a medical discharge from the Marine Corps. In October 2002, the Marines transferred Christian to Oceanside, California. About one month later, he was discharged from the Marines and in December, Christian returned to Japan to be with Marco and Alana. According to Christian, Alana told him she wanted to end their marriage. The couple proceeded with filing the appropriate paperwork to secure a divorce. In addition, Christian and Alana entered into a Marital Settlement Agreement. The provisions of the agreement indicated that Alana was to retain custody over Marco 75 percent of the time. In addition, Christian was to pay $400 per month in child support. Christian was no longer on active duty with the military and so he returned to his home in San Jose, California. Alana continued as an active member of the military and remained with Marco in Japan.

Christian reported that he telephoned Marco from California about two to three times a month. Alana claims Christian only made occasional telephone calls and she typically had to initiate the contact. The next visit between Christian and Macro took place in July 2003 when Alana returned to California on military leave. Alana and Christian had arranged for Marco to stay in Christian's care and custody for an extended period of time. Alana left Marco with Christian and returned to duty in Japan. Christian testified that he was enrolled as a full-time student while Marco was in his care. From August through mid-September 2003, school was not in session and Christian stated he cared for Marco as a full-time parent. Christian returned to school as a full-time student in the fall of 2003. While attending classes, Christian would leave Marco in the care of Marco's maternal grandmother. Christian financially supported Marco for the entire duration of the visit. Neither Alana nor Christian reported any problems or difficulties with Marco during this time.

In December 2003, Christian traveled to Japan with Marco and returned him into Alana's custody. He claims that during his visit to Japan, he entered into a verbal agreement with Alana concerning child support. Christian alleged in addition to being a full-time student, he was not receiving sufficient funds to support both himself and Marco. He testified Alana had agreed that once Christian secured a permanent job in California, he would start paying child support. Christian believed that Alana would be able to support Marco because she lived on a military base, received military allowances for Marco, and insurance coverage. Christian concluded his visit in Japan and returned home to San Jose, California.

In January 2004, Christian and Alana finalized their divorce. Six days later, Alana married Jason. In November 2004, Alana, Jason, and Marco left Japan and moved back to San Diego County.

After the divorce was finalized, Christian testified he met his biological father for the first time. The meeting did not have a positive impact upon Christian's life. Christian admitted that he started drinking heavily and did not make strong efforts to contact Alana and Marco. Christian claimed to have contacted Alana once in March 2004. After a close friend moved to San Jose to help him, Christian regained control of his life, secured a full-time job and continued to pursue his education full time. In December 2004 and January 2005, Christian sent Alana an e-mail to inform her that he was gainfully employed and he had added Marco as a beneficiary under his health insurance plan. He requested additional information from Alana for insurance purposes. Alana did not respond. Alana had moved back to the United States and had not provided Christian with her contact information. Thus, Christian was unable to reach her by telephone.

In March 2005, Christian sent an e-mail to Alana requesting that she send him her bank account information so that he could start depositing finances for child support directly into her account. He explained that he had secured a job, achieved financial stability, and had almost completed his degree. In addition, he was living in San Jose in a two bedroom house. Christian asked Alana to tell Marco how much he loved and missed him. He also asked Alana to e-mail him a photograph of Marco. According to the e-mail printout, Alana read the e-mail message in April 2005.

Three days after reading Christian's e-mail, Alana and Jason filed a Petition to Declare Minor Free from Parental Custody and Control to terminate Christian's parental rights, freeing Marco for adoption by Jason. The petition alleged Christian's whereabouts were unknown and that Marco had been left in the care and custody of Alana for more than one year. The petition further alleged Christian had not communicated with or supported Marco for more than one year.

In February 2006, Christian filed a response to the petition asserting that after he separated from Alana, he was no longer authorized to stay on base in Okinawa, Japan. He admitted leaving Marco in Alana's care and custody for more than one year but indicated he had attempted to communicate with Alana and provide financial support for Marco. In addition, Christian had sent two additional e-mails to Alana in January 2006. Christian reiterated his interest to provide financial assistance for Marco and requested that Alana provide him with her account information or her address.

In a report prepared by the San Diego County Health and Human Services Agency (Agency) under section 7822, the Agency's social worker recommended that Christian's parental rights be terminated because Christian had not contacted Alana since early 2004 nor made provisions for Marco's care.

The court conducted a trial on the petition in May 2006. The court received in evidence the Agency's report, copies of Christian's e-mails to Alana, and heard testimony from Alana, Jason, and Christian. Alana testified that Christian had been a loving father to Marco before their divorce. Alana admitted Marco lived with Christian for about three and a half months in late 2003 while she remained in Japan, but claimed Christian frequently left Marco to be looked after by Alana's mother. After the divorce became final, Alana was granted 75 percent custody of Marco. Christian was ordered to pay $400 per month. Alana testified Christian did not pay child support and claimed she had no agreement with Christian that he could defer paying child support until he was gainfully employed. She further claimed Christian had little contact with Marco after the divorce.

Christian testified he had a full-time job and was about to graduate with a double degree, one for social behavior and the other for administration of justice with a focus in law enforcement. Christian further testified he had secured a home, was living with his girlfriend, and had a daughter. He stated he did not want to take Marco away from Jason and Alana. Instead, Christian hoped he would be able to include Marco in his life and family. He admitted that in February 2004, he became emotionally distraught after meeting his biological father for the first time. He further claimed he contacted Alana once in March or April 2004. By late 2004, Christian had secured employment and was a full-time student. Christian testified he no longer had Alana's telephone number because she had moved. He sent her an e-mail in March 2005 apologizing for not meeting his responsibilities as a father. He told Alana he had secured employment, added Marco on his insurance coverage, and wanted to send money to her. Alana did not respond and Christian testified he sent Alana additional e-mails in January 2006. Alana replied to Christian's e-mails in January 2006.

The trial concluded and the court took the matter under submission. The court subsequently issued a written decision denying the petition seeking to terminate Christian's parental rights, finding by clear and convincing evidence that Christian rebutted the presumption of intent to abandon stemming from his failure to pay child support and failure to communicate with Marco. The court further found it would not be in Marco's best interests to terminate Christian's parental rights.

DISCUSSION

I

Substantial Evidence Supports the Court's Finding of No Intent to Abandon

Jason argues the trial court erred by denying his petition to terminate Christian's parental rights under section 7822. Jason asserts there was substantial evidence to show Christian intended to abandon Marco because Christian failed to communicate with, and provide support for, Marco for one year. Jason maintains the court lacked sufficient evidence to find that Christian rebutted the presumption of intent to abandon. We disagree.

A

Abandonment Under Section 7822

A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 "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." ( 7822, subd. (a).) A parent's "failure to provide support, or failure to communicate" with the child for a period of one year or more is presumptive evidence of the intent to abandon. ( 7822, subd. (b).) If the parent [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . ." (Ibid.)

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.' " [Citations.]' " (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) "If a parent [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent." ( 7822, subd. (b).) "Although a parent's failure to contribute to his child's support absent demand does not necessarily show abandonment, such failure coupled with failure to communicate may do so." (In re Cheryl E. (1984) 161 Cal.App.3d 587, 605.)

As previously noted, a parent's failure to communicate or provide support with his or her child for a period of one year is "presumptive evidence of the intent to abandon." ( 7822, subd. (b).) The statutory presumption of intent to abandon a child, like any other rebuttable presumption, may be overcome by opposing evidence. (In re Gano (1958) 160 Cal.App.2d 700, 706.) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) The parent's efforts should also show a genuine desire to maintain the parental relationship. (Ibid.)

Abandonment is a factual question, which we review for substantial evidence. (In re B.J.B., supra, 185 Cal.App.3d at p. 1211; In re Amy A. (2005) 132 Cal.App.4th 63, 69.) "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.' [Citation.]" (In re B.J.B. 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 [citation].' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)

B

Substantial Evidence Supports a Finding that Christian Rebutted the

Presumption of Intent to Abandon Marco

Jason asserts the evidence showed that Christian did not provide child support or contact Marco from December 31, 2003 through December 31, 2004, therefore giving rise to a presumption that Christian intended to abandon Marco for that period of time. ( 7822, subd. (b).) However, we reject Jason's argument because there was sufficient evidence to rebut the presumption of Christian's intent to abandon. (See In re Gano, supra, 160 Cal.App.2d at p. 706.)

First, the absence of child support payments did not clearly show Christian's intent to abandon. Christian testified that from July 2003 through December 2003, Marco lived with him in California and Christian provided support for Marco during this period of time. Christian further testified he was a full-time student and did not make sufficient income to provide child support under the provisions of the Martial Settlement Agreement. In December 2003, Christian met with Alana and entered into a verbal agreement that allowed him to defer making child support payments until he secured a stable job.^[2] Christian believed it was not the best solution, but the most reasonable in light of his current circumstances. He also believed Marco would be adequately provided for by Alana while he pursued his education and looked for employment. Once Christian secured a job in late 2004, he claimed that he e-mailed Alana in December 2004 and in January 2005 notifying her that he was employed full time. He had added Marco to his health insurance plan and requested that Alana send him the required information for insurance purposes. He did not receive a response from Alana.

Second, the court found that because Christian was a full-time student, he was unable to be gainfully employed. The court considered the undisputed evidence that after Christian was discharged from the military, he enrolled as a full-time student in the fall of 2003 and spring of 2004. Christian's pursuit of an education, with the express understanding with his former spouse that he could defer making child support payments until the time he completed an education and found employment, does not support a finding of an intent to abandon. Rather, it shows Christian made a decision to educate himself and secure a stronger financial future to provide for himself and Marco. Further, a parent may not be deprived of custody on the basis of not providing support in the absence of evidence that he had the ability to do so. (In re Cheryl E., supra, 161 Cal.App.3d at p. 605.)

Third, the evidence of an interruption in Christian's communication with Marco did not clearly show an intent to abandon because Christian had strong ties with Marco before the statutory period and Christian sought to reestablish contact with his son before the petition was filed. The record shows Christian lived and cared for Marco from birth until he was discharged from the military in October 2002. Christian resumed caring for Marco in July 2003. Marco lived with Christian for about three and a half months and the time they spent together went well. After Marco returned to Alana's custody in December 2003, Christian admitted he started to experience personal problems, which he eventually overcame. Once he secured a full-time job at the end of 2004, he resumed communication with Marco and Alana. In a March 2005 e‑mail sent to Alana, Christian acknowledged he had acted irresponsibly and apologized for his actions. He expressed his love for Marco and wanted to speak with him. Christian had secured a job, had added Marco to his insurance plans, and wanted to send child support to Alana. These efforts by Christian before Jason filed the petition do not reflect the actions of a parent deserting a child with an intent to sever relations, but instead evidence an intent to maintain a parent-child relationship. (See In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.)

Therefore, after considering the totality of the circumstances, the trial court had sufficient evidence to find Christian rebutted a presumption that he held an intent to abandon Marco during the statutory time. The court's decision to deny the petition was proper.

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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

^[2] We acknowledge Alana's testimony that she did not agree to the deference of child support. However, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999)70 Cal.App.4th38, 52-53.) It is not this court's duty to substitute our evaluation of Christian's credibility for that of the trial court. (People v. Barnes (1986) 42 Cal.3d 284, 303-304.)