In re Alexandra H

Filed 5/31/06 In re Alexandra H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

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

Russell H. appeals from a judgment terminating his parental rights to his daughter, Alexandra H., on the basis of abandonment under Family Code section 7822.^[1] Russell contends he did not leave Alexandra in the care and custody of another person with the intent to abandon her, as required for a finding of abandonment under section 7822. He maintains the court erred when it granted the section 7822 petition without making an express finding by clear and convincing evidence Russell intended to abandon Alexandra. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Alexandra was born in February 1997 to Jacqueline K. and Russell. After a casual affair, Jacqueline and Russell ended their relationship when Jacqueline learned she was pregnant. A short time after the baby was born, Russell contacted Jacqueline and started visiting Alexandra regularly. When Alexandra was two months old, Jacqueline met Cary K. They married in October 1998.

In March 2000, Russell and Jacqueline entered into a stipulated judgment of paternity. They agreed to joint legal and physical custody of Alexandra. Each parent was to pay Alexandra's expenses during the time she was with that parent; no child support payments were ordered. Alexandra spent time with each parent. However, Russell's circumstances were not stable. In April 2002, after Russell's living conditions deteriorated, Russell agreed to modify the custody order to allow him physical custody of Alexandra from Friday 3:30 p.m. through Sunday 8:30 p.m. He was responsible only for providing Alexandra's transportation to and from visitation.^[2]

In order to provide Alexandra a safe, stable environment for visitation, Jacqueline and Cary paid Russell's rent from 2002 to 2005. Nevertheless, Russell's situation continued to deteriorate and his life style became erratic. Alexandra complained about conditions at his home and resisted visitation. In August 2004, at Jacqueline's request, Russell agreed to a modification of the 2002 custodial agreement limiting his time with Alexandra from Saturday 9 a.m. through Sunday 8 p.m. Russell also agreed he would not seek custody of Alexandra were anything to happen to Jacqueline or to Jacqueline and Cary.

After a brief visit in August 2004, Russell stopped visiting and communicating with Alexandra.

In April 2005, Jacqueline learned Russell was evicted from his house and charged with possession of methamphetamine and other drug-related offenses. He failed to appear in court and a warrant was issued for his arrest. On April 27, Jacqueline served Russell with a motion to terminate custody and visitation. Russell did not appear at the hearing. On May 10, the court awarded Jacqueline sole legal and physical custody of Alexandra, suspended Russell's visitation rights, and ordered him to have no contact with Alexandra pending further order of the court.

On May 18, 2005, Russell telephoned Cary, asking for financial assistance for his family. Cary gave him a few hundred dollars. In July, Russell and his partner were arrested on charges of possession of stolen property. Their three young children were placed in foster care under the jurisdiction of the juvenile court. Russell telephoned from jail asking Cary to post bail. Cary refused the request.

On August 31, 2005, Jacqueline and Cary filed a petition to free Alexandra from Russell's custody and control on the basis of abandonment under section 7822. The hearing was held January 5, 2006.

Jacqueline testified the last contact Russell had with Alexandra was in August 2004. Alexandra was upset and did not want to go with him. The visit lasted only a few hours. Russell did not contact them again to arrange visitation. Russell did not send Alexandra Christmas gifts in 2004 or 2005. He did not send her a birthday card. Jacqueline and her husband paid Russell's rent because they were concerned about Alexandra's well-being and hoped to help him stabilize his situation. Jacqueline never expected Russell to make child support payments.

Russell testified his living conditions stabilized in recent months. He and his partner began a drug treatment program in September 2005. All their tests were clean. Russell did not visit Alexandra because he needed time to get his life in order. He did not have an obligation to pay child support. Due to the May 2005 court order limiting his contact with Alexandra, he did not send Alexandra a Christmas present in 2005. Russell did not try to modify that order because he wanted to have his "life in order . . . everything cleaned up" before approaching the court. Russell stated he never intended to abandon his daughter.

A social worker from the San Diego County Health and Human Services Agency opined it was in Alexandra's best interests to be adopted by her stepfather. She interviewed Alexandra and found her to have an age-appropriate understanding of adoption. Alexandra wanted her stepfather to adopt her. She called him and her father "daddy." Alexandra did not miss her father. She worried about her younger siblings but was happy visitation stopped.

In its oral remarks, the court stated that although Russell may not have intended to abandon Alexandra, he did abandon her for approximately a year and one-half, leaving her with her mother and stepfather without communication and without support. The court found the section 7822 petition should be granted and freed Alexandra from the custody and control of her father.

Russell filed a notice of appeal on January 6, 2006, the day after the hearing. Perhaps due to the prompt filing of the notice of appeal, the appellate record did not contain the court's written judgment, a normal part of the record on appeal. (Cal. Rules of Court, rule 37.1(a)(6); see rule 37(a)(1)(B).) On our own motion, we take judicial notice of the "Judgment of Freedom From Custody and Control" filed in this matter on January 18, 2006.

In its written judgment, the court found by clear and convincing evidence Russell voluntarily left Alexandra in the care and custody of her mother and stepfather continuously since August 2004 with the intent to leave her in their care indefinitely. By the same standard of proof, the court found Russell left Alexandra without provision for support and without communication with the intent to abandon her for more than one year. The court found it was in Alexandra's best interests to allow a stepparent adoption and terminated Russell's parental rights.

DISCUSSION

I

Russell contends he did not leave Alexandra within the meaning of section 7822 because the May 2005 court order prevented him from contacting her. He argues the court erred when it granted the section 7822 petition without making an express finding by clear and convincing evidence he intended to abandon Alexandra.

A proceeding to have a child declared free from the custody and control of a parent on the basis the parent abandoned the child may be brought under section 7822. The elements of abandonment are: (1) the child must be left by a parent in the care and custody of [the other parent] for a period of [one year]; (2) the child must be left without any provision for support or without communication from the parent; and (3) the parent must have acted with the intent to abandon the child. (§ 7822, see In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754 (Jacklyn F.).)

In proceedings to free a child from parental custody and control, we apply a substantial evidence standard of review, keeping in mind that in a section 7822 proceeding the trial court's findings must be made by clear and convincing evidence. (§ 7821; In re Amy A. (2005) 132 Cal.App.4th 63, 67 (Amy A.).) We view the evidence in the light most favorable to the respondents, resolve all evidentiary conflicts in favor of the prevailing party and indulge in all reasonable inferences to uphold the trial court's findings. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) The appellant has the burden of showing there is no evidence of a substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

II

In an action under section 7822, the petitioner must first show by clear and convincing evidence the parent left the child in the care and custody of the other parent or a caretaker. "The fact that a parent has not communicated with a child . . . or that the parent intended to abandon the child does not become material . . . unless the parent has 'left' the child" within the meaning of section 7822. (Jacklyn F., supra, 114 Cal.App.4th at p. 754.)

Russell contends substantial evidence does not support the finding he "left" Alexandra in Jacqueline's care and custody because "a court order removed Alexandra from his custody and commanded him not to visit or contact her." He relies on Jacklyn F. in which the appellate court concluded the mother had not " 'left' " the child but rather "the minor's custody status became a matter of judicial decree, not abandonment." (Jacklyn F., supra, 114 Cal.App.4th at p. 756.)

We are not persuaded by Russell's argument. Russell's disengagement from Alexandra's life was not precipitated by judicial action. He retained custodial rights to Alexandra until May 10, 2005, approximately nine months after he last contacted his daughter. He chose not to visit, telephone or write Alexandra or acknowledge her on her birthday or important holidays. When Jacqueline petitioned for sole custody, Russell did not contest the proposed order granting Jacqueline sole custody and suspending his visitation and contact with Alexandra. He was properly noticed of the proceedings and chose not to appear. Unlike the contested proceedings in Jacklyn F. in which the child's grandparents gained guardianship of the child against the mother's wishes (Jacklyn F., supra, 114 Cal.App.4th at p. 756), Russell's loss of custody and contact with Alexandra cannot be deemed involuntary.

A parent " 'leaves' a child by ' "voluntarily surrender[ing]" ' the child to another person's care and custody." (Amy A., supra, 132 Cal.App.4th at p. 69, citing In re George G. (1977) 68 Cal.App.3d 146, 160, quoting Guardianship of Snowball (1909) 156 Cal. 240, 243.) Conversely, "abandonment does not occur when the child is taken from parental custody against the parent's wishes." (In re George G., supra, 68 Cal.App.3d at p. 160.) Here, Russell left Alexandra in the care of her mother and stepfather eight months before they felt compelled to take court action. By not appearing in court after proper notice of the proceedings, Russell acquiesced to the modification of the custody agreement.

Even were we to construe the effect of May 10, 2005 court order as a "judicial decree, not abandonment," the record shows Russell did not take any steps to regain his visitation rights or to lift what was in effect a temporary no-contact order. The court in Jacklyn F. pointed out, under certain circumstances, "it might be proper to conclude that a parent has 'left' a child . . . despite court intervention . . . ." (Jacklyn F., supra, 114 Cal.App.4th at p. 756.) In some cases, the nonaction of a parent may transform a judicial taking into a parental abandonment. (In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816; see Amy A., supra, 132 Cal.App.4th at pp. 69-70.)

Russell claims he delayed a response to the May 10, 2005 court order only until conditions in his life became more stable. He contends he was trying to get his life back in order before going to court. However, the record shows Russell did not make a diligent attempt to allay seriously detrimental conditions in his home until September 2005, after his other children became dependents of the juvenile court in proceedings under Welfare and Institutions Code section 300 et seq. Even were Russell in no position to regain custodial rights, had he wanted to maintain some contact with Alexandra, he could have asked the family court to lift the temporary no contact order with or without conditions.^[3] Instead, he did nothing. Were the court order of May 10, 2005 a judicial taking, Russell's inaction transformed it into parental abandonment.

Under the facts presented here, we believe the May 10, 2005 court order denying Russell contact with Alexandra was immaterial. Russell voluntarily left Alexandra in the care and custody of her mother and stepfather in August 2004. Russell did not know of the May 10, 2005 custody order until August 2005. Russell testified the order prevented him from sending his daughter a card or gift in December 2005. This is the only indication in the record the order impacted Russell's ability to communicate with Alexandra, 16 months after he last contacted her. Substantial evidence supports the court's finding Russell voluntarily left Alexandra in the care and custody of her mother and stepfather continuously since August 2004 with the intent to leave her in their care indefinitely.

III

Relying on the court's oral remarks and the "Adoption Minutes" in the appellate record, Russell contends the court erred when it did not make an express finding by clear and convincing evidence he intended to abandon Alexandra. He points to the court's statement, "I am sympathetic to father's situation. Sounds like he had a lot of things going wrong in his life. Although he may not have intended to abandon Alexandra, it is pretty clear he did for a period of about a year and a half, which in the life of a child is a very, very long period of time." Russell argues the court's remarks are inconsistent with a finding of abandonment and, due to insufficiency of the evidence, the judgment terminating his parental rights requires reversal.

Minor's counsel (Counsel) characterizes the court's remarks as "colloquial." Counsel's states "the better practice is for the trial court to make statutory determinations on the record." Counsel, Jacqueline and Cary concede the trial court did not make an express finding of abandonment. They posit clear and ample evidence nevertheless supports a finding Russell intended to abandon Alexandra and request we imply such a finding.

The court's written judgment was not included in the appellate record. Had the record on appeal been complete during the briefing period, appellate counsel would have realized the trial court made express findings of abandonment under section 7822 by the requisite standard of proof. (See § 7821.) In its written ruling, the court carefully set forth its findings and rationale for terminating Russell's parental rights to Alexandra.

The Code of Civil Procedure section 632 provides "when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties." "An oral ruling followed by a written statement of decision makes the initial ruling nothing more than a tentative decision within the meaning of California Rules of Court, rule 232. The rule expressly provides that a tentative decision 'shall not be binding on the court' and may be modified or changed." (Khan v. Superior Court (1988) 204 Cal.App.3d 1168, 173, citing Cal. Rules of Court, rule 232(a); see Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 614; see generally, In re Jennifer G. (1990) 221 Cal.App.3d 752, 756, fn. 1 [dependency court's written visitation order controls over potentially conflicting statements regarding visitation made during the hearing].)

In its carefully crafted written judgment, the court found Russell intended to abandon Alexandra for a period of more than one year. The court's written findings are not inconsistent with the court's oral comments. In its remarks, the court found Russell did in fact abandon Alexandra for almost 18 months. Taken in context, the court's statement Russell "may not have intended to abandon Alexandra" simply means the court believed Russell may not have intended to permanently abandon his daughter.

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. (Amy A., supra, 132 Cal.App.4th at p. 68, citing In re Daniel M. (1993) 16 Cal.App.4th 878, 885, [construing predecessor statute].) In order to show abandonment under section 7822, the petitioner must show the child was left without any provision for support or without communication from the parent; and the parent acted with the intent to abandon the child. 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), italics added.)

Russell concedes he did not communicate or try to communicate with Alexandra after August 2004. Therefore, presumptive evidence of his intent was clearly established. Despite Russell's statement he never intended to abandon Alexandra, his failure to communicate with her from August 2004 is an objective measure of his intent.^[4] (In re Rose G. (1976) 57 Cal.App.3d 406, 424 ["Intent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire."].)

Russell attempted to rebut the presumption he intended to abandon Alexandra by showing his lack of communication with her was merely temporary. He testified he did not intend to ask a court to lift the no-contact order until he "cleaned up" his life. As we discussed in part II, supra, the record shows he did not make a serious effort to put his life in order. He last saw Alexandra in August 2004. Eight months later, he was evicted from his residence and arrested for possession of methamphetamine. In July 2005 he and his partner were arrested and their children detained by child protective services. Russell did not take the necessary steps to clean up his life until September 2005, over a year after Alexandra last heard from him, and then only under the supervision of the juvenile court. The trial court could reasonably conclude Russell's testimony supported, rather than rebutted, the presumption he intended to abandon Alexandra during the statutory period.

The court's oral remarks were not inconsistent with its written findings. Under section 7822, a petitioner does not need to show a parent permanently intended to abandon the child. (Amy A., supra, 132 Cal.App.4th at p. 68.) Substantial evidence supports the court's written findings. The record shows Russell left Alexandra in the care and custody of her mother and stepfather from August 2004 on, without communication, with the intent to abandon her for an indefinite period of time that was, in fact, greater than the statutory period required to establish abandonment under section 7822. There is no error.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Apartment Manager Lawyers.

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

^[2] Technically the time Alexandra spent with Russell was not "visitation" because the parents shared joint physical custody of Alexandra until May 2005. We use the term only for convenience.

^[3] For example, the juvenile court allowed Russell supervised visitation with his younger children.

^[4] The record shows Russell did not contribute to Alexandra's support after August 2004. However, in 2002, as reflected in the custodial agreement authorized by the court, Jacqueline and Cary agreed to support Alexandra. Russell's obligation to provide transportation to and from visitation was incidental to his continued contact with Alexandra. Because of the express agreement, we do not believe Russell's lack of support provides an additional objective measure of his intent to abandon her.