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In re M.R.

In re M.R.
09:13:2007



In re M.R.



Filed 8/31/07 In re M.R. CA4/2



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA





FOURTH APPELLATE DISTRICT





DIVISION TWO



In re M. R., a Person Coming Under the Juvenile Court Law



J. K.,



Plaintiff and Appellant,



v.



DAVID F., et al.,



Defendants and Respondents.



E042003



(Super.Ct.No. SASS02092)



OPINION



APPEAL from the Superior Court of San Bernardino County. Bob N. Krug, Judge. (Retired judge of the San Bernardino Sup. Ct., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.



Nicole Williams, under appointment by the Court of Appeal, for Plaintiff and Appellant.



Kimberly J. Laliberte, for Defendants and Respondents.



Michael D. Randall, under appointment by the Court of Appeal, for minor.



In this appeal, plaintiff and appellant J. K. (mother)[1]challenges the decision of the superior court to grant a petition for freedom from parental custody and control pursuant to Family Code section 7822[2]regarding her daughter M. (child). The petition was filed by the childs legal guardians, defendants and respondents David and Dianna F. (F.s). Specifically, mother argues that substantial evidence does not support the courts findings that: 1) mother left the child within the meaning of section 7822; and 2) mother had the requisite intent to abandon the child. As discussed below, we conclude that substantial evidence supports the trial courts findings, and so affirm the judgment.



Statement of Facts and Procedure



Mother has a long history of drug use, rehabilitation, relapse, and arrest. The F.s have a long history of rescuing mothers two children from the consequences thereof. The facts that we find most essential to this particular proceeding are as follows. Mother was arrested for possession of methamphetamine[3]sometime during the weekend of March 20-21, 2004. At that time, the child was living primarily with the F.s, mothers sister and brother-in-law, but was visiting mother. The F.s discovered mothers arrest when they telephoned mothers residence in Alhambra to discuss plans for the childs



upcoming fourth birthday party. A roommate told them that mother had been arrested and that the roommate did not know where either the child or her 17-year-old half-brother R. were. David drove from their home in Colton to mothers home. He waited about one and one-half hours until R. arrived home from a weekend in the mountains. R. said he had an idea where the child might be. He led David to a home in a questionable neighborhood where they found the child, along with several other children, still awake at 11:30 p.m., wearing dirty clothing and no shoes or socks, and apparently unfed. The people in the home allowed David to take the child without asking who he was or why he was there to pick up the child. The child had with her a backpack containing one change of clothing that was already dirty.[4] The child told David that she was hungry and he stated that she appeared voracious when he took her and R. to get something to eat.



The testimony differs as to when mother called the F.s from custody to check on the childs whereabouts. David testified that mother called three to four days later. Dianna testified that it was weeks. Mother testified that she called the F.s on the day she was arrested, stating I believe that each time I was arrested I contacted the F.s immediately to let them know I was arrested. In any case, with mothers consent, the F.s executed an application for guardianship on April 7, 2004, which the court granted on May 3, 2004.[5] The guardianship did not provide for visitation.



Mother did not have mail or telephone contact with the child while she was in jail, from about March 20 or 21, 2004, until late July. Mother contacted the F.s to discuss visitation when she was released from jail in July 2004. It was agreed that mother would visit with the child for several hours every other weekend, on condition that she stay off drugs, dress appropriately, and arrive on time and alone. Mother adhered to the rules initially, but then began to arrive to visits late, apparently high on drugs, and with strangers. Mothers visits became sporadic, and she had a total of four or five visits from the end of July through October 2004. At about the same time, the childs behavior began to regress. The F.s became concerned and began taking the child to a therapist in September 2004. The therapist diagnosed the child with depression and posttraumatic stress disorder. After mothers last visit on October 10, 2004, the child had nightmares with extreme rage reactions and also increased anxiety (expressed fear of being taking [sic] away from the F.s). The therapist recommended that visitation with mother cease. Based on this recommendation, and on mothers failure to comply with the conditions of visitation, the F.s asked mother not to visit anymore. Mother complied. Mother arrived at the F.s home at 11:30 p.m. one night in December of 2004 to drop off some gifts for the child, but did not visit because the child was already asleep. Dianna later stated in a declaration that it was also clear that she was using again and we didnt want her around us or M. like this. Mother placed a phone call to the F.s in early January 2005 asking to visit the child. The F.s refused because they suspected she was still using drugs, and mother became angry when she heard the child calling them Mommy and Daddy.[6] Mother said she would take steps to end the guardianship. M. witnessed that phone call and reacted in therapy with a sudden shift in her play therapy including demons, malevolent beings and abandonment issues that were precipitated by the natural mothers frequent absences when incarcerated and when she left M. with drug-addicted, unrelated adults. After another month, the consistent nurturing and care by the F.s resulted in a great reduction of negative symptoms.



Mother was arrested in March 2005 for a probation violation due to a commercial burglary. Mother was released from jail in July 2005. In September 2005 mother called the F.s to request visitation, but the F.s refused. On October 3, 2005, mother filed a petition to dissolve the guardianship. The hearing on that petition was never held because mother was arrested in October 2005 for receiving stolen property. Mother was released from jail in February 2006.



On October 21, 2005, the F.s filed an adoption request and a petition for freedom from parental custody and control pursuant to section 7800. The petition alleged that mother had abandoned the minor continuously since October 2004.[7] Mother opposed the petition. The F.s filed a first amended petition on July 26, 2006, alleging that the abandonment occurred since March 31, 2004 and October 2004, and including Probate Code section 1516.5 as a basis. Probate Code section 1516.5 does not require a finding of abandonment, as does Family Code section 7822, but rather focuses on the best interest of the child. The trial court ordered the parties to undergo a psychological assessment pursuant to Evidence Code section 730, to be conducted by psychologist Dr. Suiter, to help the court determine the best interest of the child.



The court trial on the petition was held on October 18, 19, and 23, 2006. The F.s chose to go forward solely under the abandonment statute, Family Code section 7822, rather than under the best interest statute, Probate Code section 1516.5. The court heard extensive testimony from Dianna, mother, and David. At the close of the October 19 session, the court strongly encouraged the parties to resolve the matter among themselves. The parties were unable to do so. On October 23, the court found that mother had abandoned the child and made only token efforts to visit. The court granted the petition and adoption request. This appeal followed.



Discussion



Mother argues that substantial evidence does not support the trial courts finding that mother abandoned the child within the meaning of section 7822. Specifically, she argues that the evidence does not support the findings that: 1) mother left the child; and 2) had the requisite intent to abandon her.



1. Standard of Review



Section 7822 provides in part: (a) A proceeding under this part may be brought where the child has been left . . . in the care and custody of another for a period of six months . . . without any provision for the childs support, or without communication from the parent . . . , with the intent . . . to abandon the child. [] (b) The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.



In view of the drastic nature of a termination of parental rights, proof of abandonment must be established by clear and convincing evidence. [Citation.] (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 163.) On appeal, however, 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.] [Citation.] (In re Marcel N. (1991) 235 Cal.App.3d 1007, 1013.) In applying the substantial evidence standard, [a]ll evidence most favorable to the respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. [Citations.] (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.)



Applying these principles, we consider whether the courts finding that mother abandoned the child is supported by substantial evidence.



2. Whether Mother Left The Child



Mother argues that she cannot be found to have left the child within the meaning of section 7822 because the leaving was not voluntary on her part. Mother cites In re Jacklyn F. (2003) 114 Cal.App.4th 747 for the proposition that a parent does not leave or abandon a child when a court grants guardianship over the child to another person. The court in that case concluded that [o]nce the guardianship was granted, appellant was no longer legally entitled to custody of the minor without further court order. At such point, the minors custody status became a matter of judicial decree, not abandonment. (Id. at p. 756.) However, Jacklyn F. concerned a mother who contested the guardianship and whose custody over the child the court terminated without her consent. The appellate court in that case stressed that where the care and custody of the child is taken away from the parent by order of the court without the consent of the parent, there is no abandonment. (Id. at p. 754.) [Citation omitted, italics added.] An appellate court in another case more plainly states case law also clarifies that a parent leaves a child by voluntarily surrender[ing] the child to another persons care and custody. [Citations.] (In re Amy A. (2005) 132 Cal.App.4th 63, 69.) In Amy A., the father did not contest or even attend the divorce proceedings in which the court gave the mother physical and legal custody of the child. This inaction led the court to conclude that father had left the child in the mothers care within the meaning of section 7822. Here, mother voluntarily consented to the guardianship after having asked the F.s to take care and custody of the child. In fact, David testified that mother initially thought she would be in prison for a long time and had asked that the F.s raise the child. Thus, mother voluntarily agreed to give the F.s care and custody of the child, and so she left the child within the meaning of section 7822.



Mother argues that she did not voluntarily leave the child because she was arrested and incarcerated against her will. However, she did not make any effort to regain custody of the child after she was released from jail in July 2004. In addition, mother admitted on the witness stand that she had been arrested and convicted on several occasions prior to her March 2004 arrest, and that she was well aware in March 2004 that if she chose to use drugs and violate the law she could be arrested and this would cause her daughter to be placed with others to be cared for. Thus we conclude that mother left the child when she was arrested in March 2004. However, as explained below, even if the leaving took place only when she chose not to attempt to regain custody of the child when she was released from jail in July 2004, the six-month requirement for abandonment is still satisfied.



3. Whether Mother Intended to Abandon the Child



Mother also argues that the evidence does not support the trial courts finding that she had the requisite intent to abandon the child. As set forth above, section 7822, subdivision (b) provides: The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. We note that the sentence is written in the disjunctive, i.e., the failure to do any of these three things -- identify, support or communicate -- is presumptive evidence of the intent to abandon. However, we also recognize the case law indicating that failure to support, in the absence of a showing that the parent is able to support the child, by itself is not enough to justify a finding of abandonment. (Guardianship of Pankey (1974) 38 Cal.App.3d 919, 932, as cited in In re Randi D. (1989) 209 Cal.App.3d 624, 630.)



When the evidence permits the conclusion of only token efforts to communicate with the child, Unless the presumption of abandonment raised by [that] fact has been overcome as a matter of law, the findings and order of the trial court . . . must be sustained. [Citation.] (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) Moreover, a parent cannot overcome the presumption as a matter of law merely by testifying to his or her lack of intent to abandon. (Ibid.)



Instead, the court determines intent to abandon on the basis of an objective measurement of conduct, as opposed to stated desire. [Citation.] In determining a parents intent to abandon, the trial court may consider not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of the effort under all the circumstances [citation], as well as the quality of the communication that occurs . . . . [Citation.] (People v. Ryan, supra, 76 Cal.App.4th at p. 1316.)



We also note, as stated above, that the intent to abandon does not refer to the intent to abandon permanently. Rather, the intent to abandon refers to the period of abandonment, here beginning approximately March 21, 2004, and extending for at least six months. (People v. Ryan, supra, 76 Cal.App.4th at p. 1316.)



In her brief, mother argues that she visited the child, but concedes that she did not support her. At the hearing on the petition for freedom from parental custody and control, mother testified that during the period in question she was not employed and did not send any money to help support the child. Rather, mother stated that after her release from jail in July 2004, she used the money she made doing criminal activity to purchase drugs to satisfy her addiction. While these facts do not necessarily support a finding that mother was able to support the child, this lack of support combined with a lack of communication can constitute abandonment. (In re Randi D., supra, 209 Cal.App.3d at p. 630.) We now examine whether mothers efforts to visit with the child are more than the token efforts described in section 7822, subdivision (b) that allow a finding of abandonment.



The parties agree that mother visited with the child four or five times between the end of July 2004 and October 10, 2004, when the F.s told her that any further visits would be detrimental. However, the visits were set up to be every other weekend and mother did not attend all the visits to which she was entitled. David testified that the visits were kind of sporadic. . . . []  . . .  [] In the beginning it was every other weekend, and then once a month. It had stopped. In addition, mother did not abide by the terms of the visits to which she had agreed -- that she arrive sober, appropriately dressed, on time, and without other people. Dianna testified that In the beginning she abided. Then she started showing up late with strangers. She looked shaky, edgy, as if she had been using drugs again. We agree with the trial court that the contact mother had with the child can be characterized as being on a token basis. This is because while in jail mother did not write letters or call the child on the telephone, nor did she ask the court to include visitation in the guardianship to which she agreed. After her release in July 2004, mother made no effort to have the guardianship cancelled or amended to provide for visitation, could not be bothered to visit the child regularly as scheduled with the F.s , and when she did show up for visitation was often late, under the influence of drugs and accompanied by strangers.



These visits appear to us to be token in that mother still apparently cared more about satisfying her drug addiction than having quality visits with her child on the regular basis to which she and the F.s had agreed. The quality of the visits is also in question at least in part because they resulted in the child regressing emotionally, having nightmares about drug addicts coming to kill me, expressing fear of being taken away from the F.s, and, in the words of her therapist, acting out unhealthy situations in the past with her natural mother. The evidence supports the trial courts conclusion that mothers visits with the child were token enough to negate her statements that she did not intend to abandon the child. Mother did not make a genuine effort to keep in contact with the child, as evidenced by her apparent decision to choose drugs and strangers over regular visits with her child. The quality and quantity of the visits were poor because of mothers actions. Mother testified that she took very few steps to get herself together during this time period. This substantial evidence supports the trial courts conclusion that mother had the intent to abandon the child, at the very least during the statutory period.



Even if we consider the statutory period to have begun when mother was released from jail in late July 2004 (meaning that it would extend until late January 2005), we still consider that she failed to have more than token communication for at least six months. First, although the F.s told mother on October 10, 2004, that there would be no more visits, mother did nothing to clean up her act so that she could resume visits.[8] Second, mother at that time still did not attempt to end or alter the guardianship to include visitation. Third, mothers attempted visit late one evening in December 2004 is easily characterized as token, because she arrived well after the child had gone to bed and it appeared to Dianna that she was using again. Fourth, mothers phone call in early January 2005 was in the same way token because it again appeared to Dianna that mother was using again, as was demonstrated by mother crying, acting hysterical and aggressively cussing at the F.s before hanging up. As described above, the child reacted to witnessing this telephone contact by expressing fear of abandonment in her play therapy. Thus, even were the six-month period of abandonment to have begun in late July 2004 when mother got out of jail, the requirement is still satisfied because mothers visits and contacts with the child were token, in that they were lacking in quantity and quality as a result of mothers choice to use drugs rather than maintain meaningful communication with the child.



Disposition



The judgment of the trial court is affirmed.



NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RAMIREZ



P.J.



We concur:



HOLLENHORST



J.



GAUT



J.



Publication Courtesy of San Diego County Legal Resource Directory.



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[1] The parties will hereafter be referred to with initials or their given names, not out of any familiarity or disrespect, but rather, to protect the privacy of those involved.



[2] All subsequent section references are to the Family Code unless otherwise indicated.



[3] Mother was arrested after being pulled over and found to have methamphetamine on her person. She served four months of a six-month sentence.



[4] We take this to indicate that mother had been arrested the day before David found the child in the care of others.



[5] Mother had previously consented to the F.s having guardianship over the child from December 2002 through February 2003 while mother was in jail, after the home where she and the child lived was raided by police. The F.s also had guardianship over R. at least from 2001 through 2003, although he had lived with them since 1999.



[6] Dianna described the conversation as follows We believed she was using again and told her no. She admitted that she was only selling drugs so that she could buy M. presents. She exhibited a myriad of emotions in that phone call from crying, hysterics, aggressively cussing and then hanging up, which only confirmed what we believed that she was back to using again.



[7] We note that a portion of the line, before which the date October 2004 is typed, appears to have been whited out.



[8] As is proper when reviewing the trial courts decision under the substantial evidence standard of review, we credit mothers declaration in support of her October 3, 2005 petition that she was still using drugs as of the attempted visit in December 2004 and the phone call in January 2005.





Description In this appeal, plaintiff and appellant J. K. (mother) challenges the decision of the superior court to grant a petition for freedom from parental custody and control pursuant to Family Code section 7822[2]regarding her daughter M. (child). The petition was filed by the childs legal guardians, defendants and respondents David and Dianna F. (F.s). Specifically, mother argues that substantial evidence does not support the courts findings that: 1) mother left the child within the meaning of section 7822; and 2) mother had the requisite intent to abandon the child. As discussed below, Court conclude that substantial evidence supports the trial courts findings, and so affirm the judgment.

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