Filed 8/21/17 In re Serenity W. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Appellant.

The Law Offices of Edward J. Quirk, Jr. and Edward J. Quirk, Jr. for Petitioner and Respondent.

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Nicholas W. (father) filed a Family Code section 7822[1] petition seeking to have his daughter, Serenity W., declared abandoned by her mother, L.S. (mother). The family court granted the petition. Mother appeals, contending substantial evidence does not support the family court’s finding that she abandoned Serenity.[2] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Father and mother began a casual relationship while they were in high school. After graduation in 2004, father enlisted in the Navy. Mother contacted him in June or July of 2005 and told him she was pregnant but he was not the father. Serenity was born in September 2005. About three years later, father’s brother told father that Serenity looked like father. In 2011, while still in the Navy, father filed for paternity and established himself as Serenity’s father. Father visited Serenity once or twice a year when he was on leave, and sent gifts and money.

Father completed his military service in December 2012 and returned to California. In January 2013, mother’s husband, Stephen S., told father that mother had been missing for about a week, and was addicted to drugs and having problems with anger. Stephen and father agreed that Serenity would live with father at his home. About two weeks later, the two men found mother, who was staying with other people, and confronted her about her addiction and behavior. Mother admitted she had serious problems. On January 28, 2013, mother signed a stipulation and order for custody and visitation, which gave father sole legal and physical custody of Serenity with visitation for mother at father’s discretion. Mother verbally agreed to complete a rehabilitation program before visiting Serenity. The stipulation was filed in family court two days later.

Also in January 2013, Stephen obtained a Domestic Violence Protection Act restraining order against mother, which was filed on January 28, 2013. The restraining order included as additional protected persons Serenity and two other children mother had with Stephen.

Father filed a petition to declare Serenity free from mother’s custody and control on November 24, 2015. The petition alleged that mother left Serenity in father’s care for two years and nine months without contacting father or Serenity, and without providing any financial support, letters, cards or gifts to Serenity.[3] A hearing on the petition was set for January 29, 2016.

Family Court Services investigated and prepared a report, which was filed on January 26, 2016. 10-year-old Serenity, who was in the fourth grade and living with father and his fiancé, appeared to have limited understanding of the purpose and consequences of the petition. Serenity told the investigator she remembered mother, who she referred to as “Mom,” but she expressed no attachment to mother. The last time Serenity recalled seeing mother was when Serenity was in the second grade, either in 2012 or 2013. Serenity had no desire to see mother again and wanted to be adopted by father’s fiancé. Serenity remembered her mother as “not nice. She wasn’t safe. She was very scary.” Serenity was not attached to mother and did not want to see her. Serenity, however, seemed to have a strong attachment to father’s fiancé, who she called by her first name, and wanted to be adopted by her.

The investigator interviewed father, who said that he had lived in the same town since January 2013, and had maintained the same cell phone number for the past ten years. His brother also lived in the same town and had maintained his phone number. Father kept in contact with Stephen, who knew how to reach father. Father was aware that mother repeatedly had been incarcerated over the past three years. Mother last saw Serenity in January 2013. Mother had never provided support for Serenity. Father had known his fiancé since 2009; they began dating in 2014 and planned to marry in 2016. Father was employed by NASA as a senior avionics technician. He did not have a criminal or child protective services history.

The investigator sent mother a letter at the facility where mother was incarcerated informing her of the petition, and interviewed mother at the courthouse while she was awaiting sentencing on a charge of escaping jail. Mother wanted to contest the petition. Mother admitted she had been incarcerated several times in the last three years. She had father’s phone number, but said he stopped answering her calls. She said father moved and she did not know his current address. Mother, however, had maintained contact with Stephen, who had maintained contact with father. Mother thought she would be sentenced to ten months in prison, but she might be eligible for parole in four months. Mother asked to be brought to any hearings on the petition. Mother had a criminal history that began in March 2012; her six convictions and one deferred judgment were for drug possession and theft crimes.

The investigator determined the petition’s allegations appeared to be true and met the legal standard under section 7822. According to father, the last time mother saw Serenity was in January 2013; father still had the same phone number mother last used to contact him in 2013; there appeared to always have been a way for mother to contact and visit with Serenity through father, his brother, or Stephen; mother had never provided child support in any form; mother had at least seven different criminal convictions from 2012 to 2015, and was currently incarcerated; and it appeared that mother chose to engage in behaviors that would prevent her from being a mother rather than having a role in Serenity’s life. The fact that mother had never filed for a visitation order or provided child support indicated mother did not intend to maintain a relationship with Serenity and intended to abandon her. The investigator opined it was in Serenity’s best interest to terminate mother’s parental rights and recommended the family court grant the petition.

The hearing on the petition was continued multiple times and ultimately held on October 28, 2016. The family court admitted the investigator’s report into evidence. Father’s attorney submitted on the report. Mother’s attorney called father as a witness. Father testified the facts and allegations in the petition were true and correct. Father understood that when Serenity was living with mother and Stephen, Stephen had to protect Serenity from mother when she became physically violent.

In January 2013, Stephen showed father for the first time a copy of a restraining order he was going to obtain against mother; Stephen did not give him a copy. He noted that Serenity was listed as a protected person and asked Stephen to take her off the restraining order. Father did not ask Stephen to provide verification that he had done so, as he believed Stephen could not include her on the order once father had sole legal and physical custody. Father did not check court records to determine whether the order had been issued or ask Stephen whether he got the order.

Father first became aware Serenity was a protected party under the restraining order at the last court hearing. When he found out, he asked Stephen why Serenity was on the order and how it was legal.

After January 2013, father kept in contact with Stephen. Serenity visited her half-siblings on a fairly regular basis. In February 2014, father moved to another residence in the same town. He did not inform mother of the new address because he did not know how to contact her. Between January 2013 and November 2015, father had a cell phone with the same number; mother knew the number and had tried to contact him on it after he obtained the number. In 2013 and 2014, he did not receive any communication from mother on Serenity’s behalf. At the beginning of 2013, father had mother’s cell phone number, but he never tried to contact her.

In January 2013, father obtained a custody order after mother agreed to assign sole legal and physical custody to him, which gave father discretion over mother’s visitation. Father and mother verbally agreed that if she completed a rehabilitation program, got a job, and stayed clean, she could resume visitation and communication. The stipulation, signed by mother on January 28, 2013, was filed with the court on January 30, 2013. From January 2013 to October 2016, mother had not paid anything toward Serenity’s support.

Mother testified she had seen the restraining order before, but she could not quite remember when – it may have been the end of January 2013. She first learned Stephen had a date for the restraining order hearing on January 13, 2013, which was the day she and Stephen separated. At that time, Serenity was living with Stephen. She did not know Serenity was going to be included in the restraining order before the hearing. A week after she separated from Stephen, Serenity went to live with father.

Mother knew a hearing on the restraining order was set for January 28, 2013, but she did not attend, either because she was in jail or she “just didn’t go.” Mother admitted being involved in substance abuse at that time. Mother did not remember if the restraining order was served on her or when she first received it; she believed someone “served it to me, and I don’t remember after that.” She knew it was granted because Stephen told her. Mother noticed Serenity’s name on the restraining order after she received it, but she knew Serenity was with father. No one led her to believe that Serenity was not included in the restraining order.

Mother admitted signing the stipulation that gave father sole legal and physical custody of Serenity. She gave father custody because she was going to enter a year-long drug treatment program and she wanted father to be able to make decisions for Serenity. Mother, however, did not enter treatment. Mother admitted she never visited Serenity or requested visitation in 2013, and that she had not communicated with father or Serenity since January 2013. Mother said she did not contact them because she thought there was a restraining order and she had been in and out of jail.

Mother came to understand she was restrained from contacting Serenity from reading the restraining order. Mother claimed she contacted Stephen to ask him to modify the restraining order, but she did not remember when; she believed it was in the beginning of 2013. She only had that one conversation with Stephen. He did not lead her to believe he would do anything to modify the order. Mother did not file anything with the court to try to get visitation. Mother did not go to rehab, but she was in an out-patient program, which she attended three days a week. Mother had not written father asking to see Serenity. Mother said she had tried to call father on September 7, 2016, but he would not talk to her. She admitted she did not attempt to contact him about visitation at any time from 2013 to 2015, and she did not ask anyone else to do so on her behalf. She never sent letters, cards, or presents to Serenity. Mother claimed the only reason she did not contact Serenity was due to the restraining order.

On cross-examination by father’s attorney, mother admitted the investigator’s report did not mention that she did not contact Serenity because of the restraining order. Mother, however, claimed she told the investigator there was a restraining order and the only reason she did not have any contact with Serenity in the last three years was because she thought the restraining order prevented her from visiting. Mother believed the investigator made a mistake in not including that information in the report. Mother believed she could not contact Serenity because she did not want to violate a court order.

Mother admitted she had violated the restraining order twice since 2013 by calling and speaking with Stephen; she was okay with violating the court order in order to talk to Stephen, but not to contact Serenity. Mother admitted she had father’s cell phone number. Mother and Stephen were still married – they were legally separated but had not filed for divorce. Mother did not contact a lawyer or go to the courthouse to see if she could file for visitation, and she did not think about the visitation agreement with father in relation to the restraining order. Mother testified that Stephen served her with the restraining order after she and father agreed to visitation upon his discretion, and she believed Stephen got the restraining order because she did not enter a rehab center. Mother did not see the boxes on the restraining order (which were not checked) that stated that peaceful contact with children was allowed as required for court-ordered visitation; she only read the boxes that were checked. Mother admitted the restraining order did not restrain her from financially helping father with Serenity and that since father got custody in 2013, she had not sent any money, gifts, or anything else to Serenity.

On cross-examination by Serenity’s attorney, mother admitted the restraining order did not prohibit her from contacting father and she did not attempt to contact him in 2013, 2014, and the first part of 2015 because Serenity’s name was on the restraining order, she was not “real familiar with the law of what I can and cannot do,” and she was never advised, so she thought it was wrong to contact him. She knew, however, that he did not obtain the restraining order and there was no restriction on her contacting him. Mother did not contact father for the remainder of 2015 due to her incarceration. Mother was incarcerated several different times from 2013 to 2015, and part of 2016. She went to jail on November 27, 2015 and was released on September 4, 2016. In 2013, she was in jail for a month or two every month or so. In 2014, she was in jail for four months, then she was out for a month or two, and then she was in jail another month or two.

Mother did not always know where father resided; her only resource as to his location was her aunt, who kept in contact with him and could tell mother if he had moved, but once father stopped contacting the aunt, mother did not know where he was. The phone she had in January 2013 had father’s phone number in it, but she did not have the phone much longer after January 2013. Mother confirmed that father’s address and telephone number were on the custody order, but she never attempted to get a copy of it from the court.

On re-direct examination, mother testified that she knew she could be incarcerated if she violated the restraining order.

The family court confirmed with mother that her testimony was that she did not contact father for visits with Serenity because she thought the restraining order would cover that and asked if she contacted father for any other reason. Mother answered “No.” The family court asked about the investigator’s statement in the report that mother acknowledged having father’s phone number, but he stopped answering her calls. Mother responded that she believed she tried to contact father “at the very beginning,” meaning January and February 2013, but she “backed off” after the restraining order was served and stopped trying to contact him.

After oral argument, the family court took the matter under submission. On November 4, 2016, the family court issued its written ruling granting the petition. The family court took judicial notice of the court’s file in the case in which the restraining order was issued, Kern County Superior Court case No. M-1502-FL-4823, and noted that while mother could not remember whether she was served with the final order, the proof of service in the court files shows mother was personally served on January 29, 2013.

The family court did not find credible mother’s testimony that the only reason she had no contact with Serenity since January 2013 was the restraining order for the following reasons: (1) according to the investigator’s report, mother told the investigator she tried to contact father but he stopped answering her phone calls; (2) when asked at trial about the inconsistency between the report and her trial testimony, mother asserted she tried calling father until she knew about the restraining order; (3) that position, however, was not supported by the facts, as the timeline did not accommodate the calls mother supposedly made to father, since mother signed the stipulation for custody on the same day as the restraining order hearing (January 28, 2013), and mother was served with the restraining order the following day; (4) mother’s statement to the investigator that she maintained contact with Stephen was inconsistent with her claim that the restraining order prevented her from contacting father for visitation, as mother appeared to back away from the statement by testifying she only had one or two calls with Stephen and she was prepared to violate the restraining order to contact him but not her daughter.

The family court determined that even if mother believed the restraining order prevented her from visiting Serenity, this was not a sufficient defense to the petition. The family court explained that while mother claimed she could not have the subjective intent to abandon Serenity due to the restraining order, it was her actions that led to the restraining order. The family court found mother’s claim was similar to that made by an incarcerated parent, in which courts have rejected incarceration in and of itself as a defense to abandonment. In addition, mother took no steps to seek to have the restraining order modified to permit visitation or determine whether she could speak to father, who was not a protected party. The family court found mother’s inaction was indicative of her intent to abandon Serenity, in that she had not tried to be a part of Serenity’s life since January 2013. In addition, Serenity had indicated she wished to be adopted by her stepmother and she had no bond or connection with mother. Accordingly, the family court found father had established the elements of section 7822 by clear and convincing evidence, namely that mother had abandoned Serenity for the statutory period.

DISCUSSION

Under section 7822, a court may terminate parental rights of a natural parent when it finds a “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 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).)” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).)

We review the family court’s decision to determine whether substantial evidence supports it. Our review is deferential. We “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [in favor of the prevailing party].’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness’s credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

This standard of review places a heavy burden on mother. We need not accept her testimony at face value. Instead, we resolve all evidentiary conflicts in favor of the trial court’s conclusions regarding abandonment and intent. We will not disturb a decree adjudging a minor an abandoned child if the evidence is legally sufficient to support the factual findings. We do not decide questions of witness credibility, not do we resolve evidentiary conflicts. (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011; see In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382.)

While mother acknowledges that she did not communicate with or support Serenity for nearly three years, she contends she never left Serenity with father because she and father agreed he would have sole legal and physical custody while she addressed her substance abuse problem, and thereafter she was prevented from contacting Serenity as a result of the restraining order and her incarcerations. We are not persuaded.

“In determining the threshold issue of whether a parent has ‘left’ his or her child, the focus of the law is ‘on the voluntary nature of a parent’s abandonment of the parental role rather than on physical desertion by the parent.’ ” (In re Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 504.) Thus, 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, although the parent’s later voluntary inaction may constitute a leaving with intent to abandon the child. (Ibid.) “Simply stated, ‘nonaction of the parent after a judicial decree removing the child may convert a [judicial] “taking” into a “leaving” [of a child by a parent].’ ” (Ibid.)

Here, after mother granted father custody of Serenity so she could work on her substance abuse problem, she made no effort to comply with the conditions that would have allowed her to have contact with Serenity, namely receiving residential treatment and stabilizing her life. Instead, she engaged in criminal behavior that led to her incarceration throughout much of the pertinent period. She made no attempt to seek modification of the custody and visitation order. She did not provide for Serenity’s care in any way and did not seek any type of parental relationship with her. Mother’s inaction is substantial evidence that she voluntarily surrendered her parental role and left Serenity within the meaning of section 7822. (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at pp. 505-506.)

Mother contends her belief that the restraining order prevented her from having contact with Serenity and her incarcerations precluded the family court from finding that she left Serenity with father. The family court, however, specifically rejected mother’s testimony that she did not contact Serenity because of the restraining order. In addition, the restraining order and mother’s incarcerations did not preclude mother from attempting to obtain court-ordered visitation or to have the restraining order modified. Instead of doing something to take on a parental role, mother did nothing. Moreover, the circumstances mother claims limited her ability to act were a consequence of her own voluntary actions. (Allison C., supra, 164 Cal.App.4th at p. 1012 [“His actions underlying his incarcerations for domestic violence, burglary, and driving under the influence were voluntary, and in any case, ‘being incarcerated does not, in and of itself, provide a legal defense to abandonment of children.’ ”].)

Mother also contends her inaction in trying to modify the restraining order or determine whether contact with father was permitted cannot be held against her because she is merely a lay person who lacked the knowledge or ability to “navigate a complex legal system.” As father points out, the record reflects that mother had experience with lawyers and court procedures related to her criminal cases and, more importantly, she had filed a motion to obtain visitation with her two children with Stephen. There is nothing in the record to suggest that mother did not have sufficient intelligence to at least inquire about her legal rights vis-à-vis the restraining order and about obtaining visitation.

In sum, mother voluntarily abdicated the parental role. The family court did not err by finding mother left Serenity in father’s care and custody.

Mother also contends there is insufficient evidence that she intended to abandon Serenity. Mother concedes her failure to support Serenity and maintain communication with her gave rise to the presumption she intended to abandon Serenity. She contends, however, that she rebutted the statutory presumption. We disagree.

Mother argues that her inability to pay support, father’s failure to demand support and the absence of a judicial order for support rebuts the presumption of abandonment. As mother acknowledges, however, the failure to contribute to Serenity’s support, even if no demand has been made, may show abandonment when such failure is coupled with a failure to communicate. (Allison C., supra, 164 Cal.App.4th at p. 1013 [“ ‘ “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.” ’ ”].)

Here, it is undisputed that mother failed to communicate with Serenity from January 2013 to October 2016. Mother claimed she did not contact Serenity because she believed the restraining order precluded her from doing so. As we have explained, the family court did not believe mother’s testimony on this point; therefore mother cannot hide behind the restraining order to excuse her failure to communicate.

Moreover, the family court correctly found that even if she held such a belief, the presence of the restraining order, and mother’s incarcerations, did not rebut the presumption. Mother’s argument on this point closely resembles the claims rejected in Allison C., which the family court recited when it rejected mother’s contentions below. In that case, the father left his daughter with her mother after he was incarcerated; he provided only token support for his daughter and failed to communicate with her for more than three years; and the father argued communication was restricted first by his incarceration, then by the mother’s restraining order, and later by the terms of his parole. The appellate court held the trial court finding father failed to communicate for more than three years, “coupled with its finding of nonsupport for the same period, are sufficient to show father intended to abandon her for that period.” (Allison C., supra, 164 Cal.App.4th at p. 1013.)

Similarly here, substantial evidence supports the family court’s finding that mother failed to support Serenity and failed to communicate with her for over a year, which satisfies the statutory requirement and gives rise to a presumption of abandonment. The family court reasonably could find that mother did not overcome the presumption she intended to abandon Serenity for the statutory period, as it did not find her testimony as to why she failed to contact Serenity credible and the circumstances mother claimed limited her efforts to communicate with Serenity were a consequence of her own voluntary actions. Substantial evidence supports the family court’s finding of abandonment under section 7822.

DISPOSITION

The judgment is affirmed.