Filed 12/8/17 In re Piper P. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re PIPER P., a Minor.

DUSTIN F.,

Petitioner and Respondent,

v.

A.P.,

Objector and Appellant.

F075450

(Super. Ct. No. 13CEFL05820)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. D. Tyler Tharpe, Judge.
Liana Serobian, under appointment by the Court of Appeal, for Objector and Appellant.
R. Frank Butler for Petitioner and Respondent.
-ooOoo-
Dustin F. (Dustin) filed a Family Code section 7822 petition seeking to have his stepdaughter, Piper P., declared abandoned by her father, A.P. (father). The family court granted the petition. Father appeals, contending substantial evidence does not support that he abandoned Piper. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Piper was born in May 2007 to Lindsay S. (mother) and father. Mother and father never married. In January 2010, mother obtained a child custody and visitation order that gave her sole legal and physical custody of Piper. Father was denied visitation. Father was ordered to complete a certified 52-week batterer’s treatment program and participate in individual counseling before he could seek to establish visits. In August 2010, a domestic violence criminal protective order was issued under Penal Code section 646.9, subdivision (k), that protected mother from father until August 2020.
Mother and Dustin married in April 2011. In October 2013, Dustin filed a petition to declare then six-year-old Piper free from father’s custody and control, so Dustin could adopt her. Dustin alleged he had provided financial and emotional support for Piper since February 2010, when he and mother became a couple. He further alleged that father had not communicated, or attempted to communicate, with Piper since October 2009, and had never provided support for her. Attached to the petition were the custody and visitation order, and the restraining order. The family court issued a citation to be served on father and set a hearing for December 16, 2013. The hearing was taken off calendar, however, because Dustin was unable to serve father – the home where Dustin tried to personally serve father was vacant and the family court denied Dustin’s application to serve father via publication.
Dustin filed a first amended petition in January 2014, which contained allegations identical to those in the original petition, and a citation to appear was issued with a March 10, 2014 hearing date. The documents were personally served on paternal grandmother Valerie W. in Billings, Montana, in January 2014.
Father appeared at the March 2014 hearing. An attorney was appointed for father and he subsequently moved to quash service of the citation and dismiss the action for lack of personal jurisdiction. Father contended the service on paternal grandmother was not valid because Dustin failed to serve all family members as required by section 7881, and Dustin had to show he exercised due diligence in attempting to locate father before substituted service could be made on father’s family. In his declaration, father asserted, among other things, that he had lived in Fresno County since his separation from mother, and his current address on Howard was on all the mail he sent to Piper at her maternal grandmother’s address. Father did not believe a sufficient search was made to find him, as he was on Facebook, he had not changed his email address, and mother knew his social security number.
After an April 2014 hearing on the motion, the family court granted the requested relief and quashed service of the citation and petition.
In May 2014, Dustin filed a second amended petition, identical to the original petition, and a citation was issued with a July 7, 2014 hearing date. The second amended petition and citation were personally served on father.
On July 1, 2014, father filed a declaration, in propria persona, in opposition to the petition. Father asserted he loved his daughter and had not abandoned her. Father claimed he attempted to communicate with Piper on several occasions, but to no avail. His first attempt was on Christmas of 2010, when he left a gift with a note for Piper at the door to maternal grandmother’s house. Thereafter, “[o]n numerous other occasions, including Piper’s birthday and Christmas,” he sent cards and money orders to maternal grandmother’s house, but never received a response. Father knew he could not contact mother to find out where she was due to the restraining order and no one would help him find her. One of the money orders he sent to Piper was never cashed.
Father acknowledged he had a drug and alcohol problem in the past, but he had graduated from drug classes, regularly attended church, and was a changed man. Father said he was drug free and would agree to be drug tested on demand. Father was trying to get his life back together and wanted “to include my daughter as I love her very much.” Father had inquired about hiring an attorney to help him find Piper and begin receiving visitation, but he was not sure how to do that with the restraining order against him and he could not afford to pay the $5,000 retainer. Father did not know how to go about getting Piper back into his life; he wanted a relationship with her and asked the court to assist him. Attached to the declaration were receipts of his mailings to Piper and a certificate of graduation from the Fresno County Drug Diversion Court, dated January 17, 2013.
The Investigator’s Report
At the July 7, 2014 hearing, the family court ordered the parties and Piper to participate in a Family Court Services investigative interview. Family Court Services investigator Cheryl Scott filed her investigative report the following month. Scott interviewed mother, who said that Piper, who was now seven years old, did not appear to have any recollection of father. She and Dustin had explained to her that Dustin wanted to adopt her, but Piper did not appear to understand that meant that Dustin was not her biological father. Mother said that Piper did not recognize father during their last court appearance and had never questioned her and Dustin about the existence of her biological father.
According to mother, father failed to offer support for, or communicate with, Piper since she was about two years old. Mother said that she and father separated in August 2009, after father broke into maternal grandmother’s home, where she and Piper were living, and Piper witnessed a physical altercation between them. After the separation, Piper did not have scheduled visits with father. Father briefly saw Piper on two occasions when he came to their home unannounced and uninvited, and he last interacted with Piper in October 2009, when he again showed up unannounced.
Scott reported that Piper’s lack of awareness of father’s existence limited her interview of Piper. Scott did discuss with Piper her perceptions of her family and her preference regarding her primary care providers. Piper indicated a clear primary attachment to mother and Dustin. Piper easily identified fun activities she enjoyed doing with them on a regular basis and wanted to continue living with them. When describing her family, Piper did not make any “spontaneous references” to father, nor did she say anything that suggested she was aware of, or remembered, either father or any other father figure.
Scott interviewed father. Father claimed that he and mother separated in October 2009. After that, he had half-hour visits with Piper in the maternal grandmother’s driveway approximately twice a week, and talked with her every night at 9 p.m. The driveway visits and phone calls continued until January or February 2010, when he and mother agreed he could visit Piper at McDonalds on Saturdays. Those visits, however, never occurred due to scheduling conflicts. Father said he attempted to visit Piper in the maternal grandmother’s driveway in January 2010, but he was arrested for violating a restraining order. Father claimed he was not aware of the restraining order and would not have intentionally violated it had he known it was in place. He last had contact with Piper in March 2010, when he and mother met at maternal grandmother’s home to discuss a possible visitation schedule, but they did not reach an agreement and no additional visits were scheduled.
Father was sentenced to one year in state prison in August 2010 and was incarcerated until November 2010. Father acknowledged he did not have any contact with Piper during this period. After his release from prison, father was afraid to have any contact with mother as he did not want to inadvertently violate the restraining order. Father, however, said mother had instructed him to send any communications to, or gifts for, Piper through maternal grandmother. Since November 2010, father had been sending cards and gifts, in the form of checks or money orders, to maternal grandmother’s home each year for Easter, Christmas, and Piper’s birthday, although he did not start documenting these actions until May 2013. Most recently, he sent a card and money order for Piper’s May 2014 birthday in a package, but the package was returned to him unopened.
Scott reviewed the file in the family law case in which mother obtained the custody and visitation order. Mother initiated the action on October 5, 2009. Both parties attended the initial hearing on November 17, 2009, when they received mediation and return court dates of December 15, 2009 and January 11, 2010, respectively. On November 20, 2009, mother filed for a restraining order against father based on her report that he verbally and physically assaulted her and maternal grandmother immediately following the November 17 hearing. Mother’s request for a temporary restraining order was denied, but the matter was set for hearing on December 15, 2009. Mother obtained an attorney and on November 30, 2009, she again filed for a restraining order against father. A temporary restraining order was granted, which included orders granting mother sole custody of Piper and denying visits to father pending a hearing on December 23, 2009.
The parties participated in separate mediation sessions on December 15, 2009, but were unable to reach an agreement. The mediator noted that father was extremely emotional during his interview; he was “unable to take any responsibility for himself or his own actions[,]” and approached mother in the Family Court Services lobby “asking her not to do this and that he had just come from court and he was going to give her the child.” The mediator documented significant concerns about Piper’s safety with father and recommended the court grant mother sole custody with no visits to father pending his completion of a 52-week batterer’s treatment program and individual counseling.
At the December 23, 2009 hearing, the court found that father had committed an act of domestic violence and granted mother’s request for a permanent restraining order, which gave mother sole custody of Piper and allowed father agency-supervised visits for at least three hours per week. The restraining order was to expire on December 23, 2012. Father told Scott he tried to set up the agency-supervised visits, but he was unable to do so due to his arrest in January 2010.
Mother attended the January 11, 2010 post-mediation hearing, which was continued to January 21, 2010, as father was not present. While father told Scott he did not attend the hearing due to his incarceration, father’s case history showed that he was released from county jail on January 8, 2010. Father was not present at the January 21, 2010 hearing. The court adopted the mediator’s recommendation and awarded mother sole custody. Father was denied visitation until he completed a 52-week batterer’s treatment program and counseling.
In May 2011, mother filed a motion to allow her to relocate with Piper outside Fresno County, which was set for hearing on August 11, 2011. Father was not present at the August 11, 2011 hearing, when the court granted mother’s request. Father told Scott he did not attend the hearing because he was never served or made aware of the court date. The file, however, contained a proof of service on father.
Father told Scott that his incarceration and the restraining orders limited his ability to have contact with Piper. Father denied that he had a history of violence and explained that he pled nolo contendere to a stalking charge in 2010 because he was afraid of going to prison and was told the plea would reduce his sentence. Father could not understand why the court granted the restraining orders, as he had never been violent or aggressive with mother. Father had not completed a 52-week batterer’s treatment program because he was not aware he had been ordered to do so.
Father asserted he loved Piper unconditionally and never intended to abandon her. Father claimed he did not pursue court involvement to establish visitation with Piper because: (1) he hoped that sending cards and money would “speak louder than words” to mother, and she would show him “mercy” and allow him to reestablish visits, although he acknowledged he was not making progress with mother and that method was not working; (2) he was not comfortable pursuing legal action to establish visitation after his release from prison because he was fearful of the court system; (3) sometime in 2013 he contacted a paralegal about the breakdown of his family, and while he could not afford an attorney, he talked to the paralegal about what family reunification services might be available to him to help get his family back together; and (4) he contacted a paralegal again in March 2014 when he received the first petition, but he did not have time between when that petition was quashed and the second amended petition was filed to take any action or obtain documents needed to file a petition to modify the custody order.
Father believed mother was primarily responsible for his lack of contact with Piper over the years, as it was mother who chose to pursue separation and obtain a restraining order against him. Father felt mother should have shown Piper pictures and told her about him while he was away. Father believed it was essential that the court hold mother accountable for her lack of effort towards fostering a relationship between himself and Piper.
Based on her investigation, Scott concluded: (1) father had not had physical contact with Piper since October 2009; (2) father’s contact with Piper between then and the filing of the petition appeared to be limited to token efforts; (3) while it appeared father attempted to send a check or money order to Piper a few times a year in 2013 and 2014, father had not provided any evidence of consistent, significant financial support; (4) Piper described a significant attachment to Dustin and mother, and expressed a clear preference to remain under their care; and (5) Piper appeared to lack any recollection of or attachment to father.
Scott opined that father’s lack of significant action over the past four years demonstrated acceptance of his lack of contact with Piper. Moreover, father was highly focused on what was right and fair for him, rather than on Piper’s best interest. For example, father told Scott he would pursue equal custody if his parental rights were not terminated, which he thought he deserved since he helped “create” Piper. Father had difficulty considering that Piper might not adjust quickly to shared custody since she perceived Dustin to be her father. Father believed it would only take Piper a “couple of visits” before they “clicked” since he was “her dad.” Scott was also concerned that father perceived himself to be the only victim here and failed to acknowledge how his actions impacted his lack of contact with Piper, which might limit his ability to resolve the safety issues that led to the initial visitation orders.
While Scott acknowledged that father appeared to genuinely want to become a positive influence in Piper’s life, the information the parties provided supported the petition’s allegations. Father had been absent during a significant period in Piper’s life and during that absence, Piper developed a positive and significant attachment to Dustin. Scott opined that the termination of parental rights would serve Piper’s best interest and therefore recommended the petition be granted.
The Continued Hearings and Supplemental Investigator’s Report
In August 2014, a contested hearing was set for November 4, 2014 and an attorney was appointed to represent father. The hearing did not take place on November 4, however, because father was taken into custody the day before. At the request of the parties, the hearing was continued first to February 3, 2015, and thereafter was continued multiple times by stipulation. The parties requested the continuances so the three-year statute of limitations could expire on the charge for which father was arrested in November 2014, as father needed to protect his Fifth Amendment rights since the district attorney had kept the case open without pressing charges.
Finally, the hearing was to begin on January 13, 2017. At the outset of the hearing, however, father’s attorney asked the family court to dismiss the matter because the information in the investigator’s report was not current. The family court denied the request, stating at best it would re-refer the matter to Family Court Services for another report. After conferring with Scott, who had been subpoenaed for the hearing, regarding whether it would be beneficial to re-interview Piper, the family court referred the matter back to Scott for an amended report and set a trial date for March 14, 2017.
Scott prepared a supplemental report. Mother told Scott that Piper had been diagnosed with a processing disorder and was receiving specialized services via an Individualized Educational Plan, although she was fully integrated in the mainstream classroom. Piper received psychotherapy about six to eight months before because she was having difficulty expressing herself, which was discontinued after Piper benefitted from it. Mother reported that Piper still had no awareness of her biological father, therefore Piper did not initiate any conversation with the therapist about the petition before the court. Mother and Dustin, however, did consult with the therapist regarding the nature of the proceeding, as they wanted to ensure they were able to meet Piper’s emotional needs should she become distressed by the contested petition.
Scott interviewed Piper and asked her open-ended questions about her family. Piper did not make any reference to father. Scott discussed other family structures that involve multiple parental figures. While Piper was aware of different family structures via other children at school and the media, and described a time when maternal grandmother was a significant parental figure in her life, this did not appear to trigger any recognition of father or any other biological parent.
Based on Piper’s lack of awareness regarding father’s status as her biological father, Scott was unable to explain the exact nature of the proceeding to her. Scott did discuss with Piper the circumstances of parental custody and control, and how it allowed parents to care and make legal decisions for her. Although Piper did not relate to the possibility of father “losing” this parental authority, she indicated she wanted “mom and dad,” meaning mother and Dustin, to continue to assert this authority over her. Piper described a strong and positive attachment to mother and Dustin, saw them as her primary care providers, and expressed a preference for continuing to reside with them. Piper did not like coming to court and having to wait around for this “grown-up stuff.” While Piper appeared invested in what she perceived to be mother’s and Dustin’s attempts to change her name to “match my family,” she did not express any interest in attending additional court proceedings.
It appeared to Scott that Piper continued to lack any relationship with or memory of father, and it was unlikely the relationship could be repaired to the point where Piper would accept father as a parental authority without at least some, if not significant, distress to Piper. Therefore, it remained Scott’s professional opinion that it was in Piper’s best interest to be declared free from father’s parental custody and control.
The March 2017 Hearing on the Petition
Scott, father, mother and Dustin all testified at the March 14, 2017 hearing. Scott confirmed the information father gave her when she interviewed him in August 2014. After interviewing everyone involved, Scott had come to the conclusion that it was in Piper’s best interest to be freed from father’s custody and control. Scott did not recall father talking about having any contact with Piper after March 2010. Scott’s follow-up interview with Piper did not change her recommendation because Piper’s “experience” had not changed from August 2014 to January 2017; namely, she continued to have a strong familial relationship with mother and Dustin, and wanted to remain with them.
The parties stipulated that father was in custody from January 8, 2010 to January 15, 2010, and he was transferred in-custody from Fresno County to Madera County on January 11, 2010. On cross-examination, Scott admitted that, based on this information, her opinion had changed as to father’s availability to attend the January 11, 2010 hearing, as he was in custody. During Scott’s review of the family law file in the case mother initiated, she did not recall seeing any proof of service, or notice of mailing from the court, of a minute order from the January 11, 2010 hearing or that related to the January 21, 2010 custody order. Father’s apparent lack of notice of the January 21, 2010 hearing, however, did not change Scott’s opinion that father should have participated in that proceeding. Scott confirmed that Piper had no recollection of her biological father.
Dustin’s attorney called father as an adverse witness. Father had worked at UPS since December 2015; this was his first job since about 2003. He had not had a checking or savings account since 2005. Father believed he and mother separated in “October-ish of 2009.” Father remembered that mother confronted him in the summer of 2009 after he took money from a drawer that had been given to Piper as gifts. Father also recalled an incident in which he was stopped while driving mother’s car, which was towed after father, who was driving on a suspended license, was arrested. Father remembered incidents on September 6 and 30, 2009, where mother called the police and had him removed him from her home.
Father claimed he had further visits with Piper after those incidents in the driveway of maternal grandmother’s home. He recalled telling the mediator those visits were twice a week and ended in January or February 2010. The last time he visited Piper was at the end of February or beginning of March 2010. He was with mother and Piper on the back patio; they visited for about a minute. Piper asked where father was going; father responded that he had to get his “act together” and he would come back when mother felt he had done so.
When father attempted to visit in January 2010, he was arrested for violating the restraining order. Father first learned there was a restraining order in place when mother’s cousin served it on him outside the courthouse on the day he had orientation, but father did not remember if that was on December 11, 2009. Father admitted he was present in court on December 23, 2009, when the restraining order was issued, and that he was told its terms at that time. While the restraining order gave him visits, he could not set them due to his arrest. Father admitted he knew he was violating the restraining order when he visited Piper in March 2010, but he went there anyway. Father admitted this was inconsistent with his statement that he would not intentionally violate a restraining order.
Father pled guilty to violating the restraining order on January 8, 2010 and was transported to Madera County. Father was concerned about not being transported to the January 11, 2010 hearing because he knew he needed to be there. After being released from custody on January 15, 2010, he did not try to find out what happened on January 11. While he was concerned about the result of the hearing, he claimed he did not know what his options were and admitted he did not explore his options.
Father was arrested again on March 26, 2010. He did not know he was charged with five counts of violating a restraining order, trying to dissuade a witness, first-degree burglary, stalking, aggravated trespass, trespass, aggravated vandalism and theft. He pled guilty to stalking in August 2010 because he was afraid of prison and wanted to minimize his time there through a plea bargain. He was sentenced to prison and got out in November 2010. Father claimed that after the judge told him at sentencing that there was a 10-year protective custody order, he asked the judge how he could see his daughter. The judge responded that he could not, and if he attempted to see Piper and mother when the protective order was in place, he would go back to prison. Father knew a court reporter was reporting the proceedings, but he claimed this exchange occurred as the courtroom deputy was escorting him out of the courtroom. That was when he turned around and asked the judge “How do I see my daughter?” The judge answered: “You don’t. When there’s – as long as this protective custody order is in place, if you attempt to see them I’ll send you back to where you are going.” Father had seen the transcript of the sentencing hearing and admitted there was no mention of this exchange. According to the hearing transcript, the judge told father, when describing the protective order’s terms, that for the next 10 years, he was to have no contact with mother, or come within 100 yards of her or her residence. The judge did not mention Piper.
About four months before paternal grandmother was served with the papers in this case, father talked to a friend who was a paralegal, but before he could do anything, he learned of this case. Father said he had never been informed that he was supposed to complete a 52-week batterer’s treatment program, attend mental health counseling, or have a mental health assessment.
Other than dropping off diapers a couple times, father did not do anything to support Piper after his separation from mother until Christmas 2010, when he started sending Piper $400 for her birthday, $100 for Easter, and $400 for Christmas. He had documentation for this from 2013 onward, but did not have proof of sending earlier gifts. Beginning in 2013, the gifts he sent were returned to him.
In 2011, father was arrested for possession of a controlled substance and completed an 18-month diversion program. In June 2013, he had a drug-related arrest for being an ex-felon in possession of a firearm and possession of drugs. Father claimed he was in the wrong place at the wrong time. He was arrested again on drug charges on November 3, 2013, and was unable to attend court the following day. Father claimed this was a case of “wrong people, wrong time.”
Mother testified that her relationship with father started to deteriorate in August 2009, when she confronted him about stealing a monetary gift maternal grandmother gave to Piper. Father admitted the theft. At the time, father was living with her “off and on” at maternal grandmother’s house. By September 6, 2009, he was forced to move out. On that date, father caused mother’s vehicle to be impounded. In mother’s view, this was “the complete finality of the relationship.” After that, father showed up at maternal grandmother’s house twice. The police were called and father was removed for trespassing.
Mother filed the petition regarding custody and visitation on October 5, 2009, and the documents were served on father on October 10, 2009. That was when all authorized visits between father and Piper ended. Thereafter, father occasionally showed up at the house, but he did not actually visit Piper or interact with her. Mother denied that any driveway visits occurred after October 2009, or that there was a discussion about setting up visits at McDonalds. While father called Piper before September 6, 2009, mother terminated the calls because they traumatized Piper, who ended up crying and distressed.
After the November 17, 2009 hearing, father chased mother and maternal grandmother through the courthouse and into the parking structure. Father attempted to block them from leaving the structure, but eventually they were able to do so. After this, father attempted to call mother over 100 times in one day. On November 18, mother was going to file a domestic violence restraining order when father showed up at maternal grandmother’s house. Mother called the police. Mother contacted an attorney to file a domestic violence restraining order, which was granted.
Mother was present at the December 11, 2009 orientation when father was served with the restraining order papers, and they were both present at the December 23, 2009 hearing on the restraining order. The court made certain orders that protected mother and maternal grandmother, and father was granted supervised visits. To mother’s knowledge, visits were never set up. Father showed up at mother’s house on December 28, 2009 and police were called, but father left before they arrived. Father showed up at maternal grandmother’s house on January 5, 2010; police were called and father was arrested in mother’s presence. Father was not present at the January 11 or 21, 2010 hearings. At some point, mother blocked father’s phone number so he could not call her; she had to block more than one number, because after she blocked one number, father would call from another.
On January 24, 2010, flowers were delivered to maternal grandmother’s home. Mother refused to accept them, as father had sent them. Mother contacted the florist, who told her that father had used her debit card to purchase the flowers. Mother filed a fraud claim. There were also charges to her account for something called “People Find,” which mother did not incur.
Mother denied that father visited Piper in March 2010. On March 2, 2010, he broke into maternal grandmother’s home and confronted mother. Mother was extremely frightened and called the police. Mother stopped staying at that residence and moved in with a girlfriend in Northern California. She was not in Fresno when father was arrested on March 26, 2010.
Mother testified that father never provided any support for her or Piper. Mother had never received any money or communication from him through the mail, either for herself or for Piper. Mother denied telling father that he could send things to her or Piper at maternal grandmother’s address. Father’s actions from August 2009 to March 2010 had a negative effect on Piper; she showed signs of aggression, depression and anxiety.
Mother began dating Dustin in February 2010. As he became more involved with mother, Piper bonded with him and they came to have a father-daughter relationship. The two were “very close” and Dustin was “very involved” in Piper’s life.
On cross-examination, mother confirmed that maternal grandmother still lived at an address on North McCall in Sanger. Mother moved in with maternal grandmother in 2007; before that, she lived in an apartment with father on North Manila in Fresno.
In May 2011, mother filed a request to relocate Piper from Fresno County, which she had asked her attorney to prepare. Mother did not know why father was served with that request at the Manila apartment and she did not recall providing her attorney with that address. Mother had no contact with father after his release from prison in November 2010, and had not received any documentation from him that gave the impression he moved back to the Manila apartment.
Mother was aware father was out of custody from November 2010 to May 2011. During that time, mother and Piper lived at the McCall address, and Piper never received a dollhouse or card with a money order in it. Sometime in 2011, mother and Piper relocated to Shasta County because Dustin lived there. Mother did not recall if any steps were taken to have father served with the order from the August 2011 hearing in which her request to relocate was granted.
Maternal grandmother never told mother that Piper received mail at the McCall address from August 2011 to the date the petition to terminate parental rights was filed. Mother confirmed that father had not had any authorized contact with Piper from October 10, 2009 to the date of the hearing, and denied that father interacted with Piper on the patio of the McCall residence in February or March 2010.
Mother never sought child support from father. The family law restraining order expired after three years and mother did not seek to renew it. Mother first claimed that father only had a significant role in taking care of Piper for the first few months of her life, but later confirmed that when she returned to work when Piper was three months old, father stayed home and took care of Piper for about nine months. Mother confirmed that Piper called father “papa.”
The last name Piper legally used at school was father’s last name, although informally she went by Dustin’s last name, which she had used since she was three. She knew her legal last name was different, but never asked why. Piper believed Dustin was her father.
Dustin testified he met Piper when she was two and a half years old, and he considered her his daughter. The two did “everything together” and he was involved in pretty much every aspect of Piper’s life. He and mother had a son together, who Piper loved. Piper was doing great in school and required “very little discipline.” She and her brother got along very well. Piper was having a hard time expressing her emotions and feelings, so they took her to a local therapist, who worked with her for several weeks. Piper learned some innovative communication techniques that helped her at school and home. Dustin was looking forward to adopting Piper and understood the rights and responsibilities of adoption.
Dustin had never lived in Fresno County. From when he first met Piper to when she relocated to Shasta County, Dustin drove down to Fresno often to visit her. Dustin did not recall Piper visiting him in Shasta County before she and mother moved there. Piper never asked him why her legal name was different than his. Dustin did not plan to tell Piper that father was her biological father and had not considered whether keeping this information from her could cause her emotional confusion in the future. Dustin believed Piper saw him as her biological father.
Father was recalled to testify on his own behalf. Father said he lived with mother and Piper from Piper’s birth to October 2009, and he last saw Piper at the end of February or beginning of March 2010. Father recalled meeting with a mediator in December 2009 to discuss custody issues. At that time, father said his emotional state was “[b]onkers[,]” and he was “very sad, very, very sad[,]” because he was losing his family. After the mediation, he knew there was a court date on January 11, 2010, but he did not attend it because he was in jail. Father was not living in any one place after his incarceration in January 2010; he was “kind of floating around.” He never provided mother with an address where he was living. He did not receive any documentation in the mail regarding a continuance of the custody hearing. He denied ever seeing the January 11, 2010 minute order or the January 21, 2010 custody order before the current proceeding, and he was not aware that he had to perform services in order to be able to see Piper.
After his arrest on March 26, 2010, he was in local custody until August 2010. He was never provided any documentation during this time relating to custody and visitation. Father never received mother’s May 25, 2011 request to relocate Piper. A proof of service was addressed to the Manila apartment, where he had lived from 2000 to 2007. He did not return to that address after his release from custody and would not have received mail addressed there. Father claimed he had never knowingly failed to appear in court relating to a custody matter for Piper.
After the August 2010 hearing when the criminal protective order was issued, father understood that if he attempted to contact Piper while the order was in effect, he would go back to prison. Based on this understanding, he did not believe there was any way he could schedule visits with Piper or call her on the phone, or there were any services he could complete that would allow him to see Piper.
Following his release from prison, he attempted to communicate with Piper by sending Christmas, birthday and Easter cards, along with money to maternal grandmother’s house on McCall. He sent Piper a dollhouse for Christmas in 2010. Father had FedEx and United States Postal Service receipts of money orders he sent to Piper, along with photographs of the cards he sent her. Father never received any communication back. Father believed he was doing everything he could to maintain a relationship with Piper. He had never been served with a request for child support.
Father denied that he ever intended to abandon Piper. Father thought both he and mother were at fault for his lack of relationship with Piper. He was at fault for being ignorant of his options. After his release from prison in 2010, he planned to “get into” Piper’s life immediately and be a good father. He tried to do that by sending Piper the dollhouse and card. He thought if he made an attempt, mother would soften and see he was trying. He did not do anything else because he did not know what his options were, given what the judge had told him. Father did not apply to the criminal court to have the criminal protective order modified or file anything with the family law court to have the custody order modified, as he did not think he could do anything for 10 years.
When Scott interviewed him in 2014, father believed Piper could reunify with him because after six months of supervised visits, “there would be relatively a door opening up between her and I.” Prior to his separation from mother, he was in Piper’s life every day and was responsible for taking care of her. They had a great relationship.
Although father testified it was very important for him to reestablish a relationship with Piper in 2010 because he believed it was important to “make some kind of gesture and show that I was making an attempt to be her father[,]” he never contacted an attorney. Before the termination proceedings began, father never tried to contact mother’s attorney to obtain information about what happened in 2011, even though he knew who mother’s attorney was. After his release from custody in January 2010, he contacted someone to try to set up visitation, but “it just didn’t go anywhere.” He did not attempt to obtain records of the proceedings because he did not know he could and he thought he had to show consistency so mother would see he was trying. He knew custody and visitation issues would be decided at the January 11, 2010 hearing, but he never did anything to find out what happened at that hearing. Father said that none of the gifts he sent before 2013 were returned, only ones he sent from 2013 onward.
At the conclusion of the hearing, father’s attorney orally requested a statement of decision pursuant to Code of Civil Procedure section 632. The court took the matter under submission and stated it would issue a statement of decision “in due course,” as long as it was timely, sufficiently specific, and complied with the statute.
The Family Court’s Ruling
The family court issued its written ruling on March 15, 2017. The family court declined to issue a statement of decision because it was not compelled to do so, as father’s attorney did not specify any particular controverted issue she wished the court to address. Instead, the family court stated the written ruling would suffice.
The family court agreed with Scott’s recommendation to grant the requested relief, as it would be in Piper’s best interest. The court was “abundantly satisfied by clear and convincing evidence” that father failed to provide support for Piper or communicate with her or mother for at least a continuous one year period preceding the commencement of the action, and he intended to abandon Piper during that period. The court found mother the more credible witness, stating that to the extent her testimony was inconsistent with father’s on the issue of support and communication, it believed mother, and father’s “testimony on those subjects (and others) was not credible.”
The family court found father’s claim that he could not or should not pursue parenting time with Piper in 2010 and 2011, which period exceeded one year, was “preposterous.” The family court noted that father “undertook no efforts to support or communicate with the child during this period. In fact, he waited a few more years to make any attempts – long after [Dustin] began to provide the child with a healthy, stable and loving environment. [Father] rightfully labelled his late attempts as mere ‘gestures.’ ”
The family court granted the petition and terminated father’s parental rights.
DISCUSSION
Father’s sole issue on appeal is that the evidence was insufficient to support the family court’s finding that he abandoned Piper within the meaning of section 7822.
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 father. We need not accept his 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.)
Father challenges the family court’s findings as to all three elements of abandonment. First, he contends that he could not be found to have “left” Piper with mother because he was forced to do so by the December 23, 2009 restraining order, the January 21, 2010 custody and visitation order, the August 2010 criminal protective order, and mother’s move to another county in August 2011. He asserts his later inaction cannot be held against him because he was never notified of the court’s requirements for him to resume visitation or of his right to challenge mother’s request to move to another county. 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, Piper was effectively taken from father by the January 2010 custody and visitation order. Even if father was not aware of what he needed to do to reestablish visits with Piper because he was not served with the custody and visitation order, he knew the custody proceedings were ongoing, yet he made no effort to discover the result of the hearings or how he could establish contact with Piper. Instead, he stalked mother, for which he was arrested and incarcerated. He did not provide for Piper’s care in any way and did not seek any type of parental relationship with her. Father’s inaction is substantial evidence that he voluntarily surrendered his parental role and left Piper within the meaning of section 7822. (In re Marriage of Jill and Victor D., supra, 185 Cal.App.4th at pp. 505-506.)
Father contends the lack of notice of both the January 2010 custody and visitation order, and the August 2011 move-away order, deprived him of the opportunity to exercise his parental rights to visitation and reunification. The family court, however, specifically rejected father’s testimony as to why he did not pursue parenting time with Piper in 2010 and 2011, and found that he did nothing to support or communicate with her during that period. Father asserts that his incarceration, the restraining orders, and mother’s move to Shasta County precluded the family court from finding that he left Piper with mother. But father could have attempted to obtain court-ordered visitation despite these obstacles. Instead of doing something to take on a parental role, father did nothing. Moreover, the circumstances father claims limited his ability to act, namely his incarceration and restraining order, were a consequence of his 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.’ ”].)
Father also suggests that his inaction cannot be held against him because he is a “lay person.” The record reflects that father had experience with lawyers and court procedures related to his criminal cases. In addition, he knew enough to consult with a paralegal and even contemplated hiring an attorney, although he said he could not afford one. There is nothing in the record to suggest that father did not have sufficient intelligence to at least inquire about his legal rights vis-à-vis the restraining orders and about obtaining visitation.
In sum, father voluntarily abdicated the parental role. The family court did not err by finding father left Piper in mother’s care and custody.
Father next contends that there is insufficient evidence that he failed to support or communicate with Piper for a period of one year. Based on mother’s testimony, which the family court accepted, father never provided any support for Piper and the last time he visited or communicated with her was in October 2009. While father points to his testimony that he sent Piper gifts, cards and money starting in December 2010, as evidence of communication and support, the family court expressly rejected his testimony on these points and found that father did not support or communicate with Piper in 2010 and 2011, a period that exceeded one year. Thus, there is sufficient evidence to establish the second element – that father failed to support or communicate with Piper for one year.
This leaves the crux of the issue – whether father intended to abandon Piper. Father appears to acknowledge that his failure to support Piper and maintain communication with her gave rise to the presumption that he intended to abandon her. He contends, however, that he rebutted the statutory presumption. We disagree.
Father argues mother’s failure to demand support and the absence of a judicial order for support rebut the presumption of abandonment. As father acknowledges, however, the failure to contribute to Piper’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, mother’s testimony shows that father failed to communicate with Piper, at a minimum, in 2010 and 2011. While father points to his testimony that he sent cards and money beginning in December 2010, the family court rejected this testimony and found father did not make any effort to communicate with Piper during this period. Father claims he did not contact Piper because he believed the restraining orders prevented him from doing so. The family court, however, did not believe father’s testimony on this point; therefore, father cannot hide behind the restraining orders to excuse his failure to communicate.
Moreover, even if father held such a belief, the presence of the restraining orders and father’s incarceration did not rebut the presumption. Father’s argument closely resembles the claims rejected in Allison C. There, 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 father failed to support Piper 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 father did not overcome the presumption he intended to abandon Piper for the statutory period, as it did not find his testimony as to why he failed to contact Piper credible and the circumstances father claimed limited his efforts to communicate with Piper were a consequence of his own voluntary actions.
Abandonment and intent are questions of fact for the trial court, which the trial court resolved adversely to father’s position. (Allison C., supra, 164 Cal.App.4th at p. 1011.) Father essentially asks this court to reweigh the evidence and substitute our deductions for those of the family court. This we may not do. The credibility of witnesses and the probative value of their testimony are questions for the trier of fact. The power to weigh the evidence and resolve issues of credibility is vested in the trial court and not the reviewing court. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.)
Because father has failed to meet his burden of establishing that the trial court’s findings of abandonment and intent were not supported by substantial evidence, those findings will not be disturbed on appeal. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
Finally, father contends it was not in Piper’s best interest to terminate his parental rights. When a court finds abandonment, it must consider the child’s best interests before deciding whether to terminate parental rights. (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 156; In re Marcel N. (1991) 235 Cal.App.3d 1007, 1014-1015.) When considering whether to terminate a parent’s rights, the court must liberally construe section 7822 to “serve and protect the interests and welfare of the child.” (§§ 7800, 7801.) In doing so, the court “shall consider the wishes of the child, bearing in mind the age of the child . . . .” (§ 7890; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1208.)
Father argues it was not in Piper’s best interest to terminate his parental rights because he was actively involved in her care for the first year of her life and she should know her biological father. The evidence, however, showed that Piper had not had a relationship with father since she was two years old, and eight years later, she did not know father. Instead, she believed Dustin was her father and she had a father-daughter relationship with him. Dustin wanted to adopt Piper and thereby confirm the already existing parental relationship. Scott opined that it would be detrimental to Piper to introduce father into Piper’s life at this late date.
The test is not whether this court would have made the same order or whether the trial court could have reasonably made some other order, but “ ‘whether the trial court could reasonably have concluded that the order in question advanced the “best interest” of the child.’ ” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 595.)
There was substantial evidence to support the family court’s findings that termination of father’s parental rights was in Piper’s best interest, and we reject father’s contention to the contrary.

DISPOSITION

The order is affirmed.