In re A.M.
Filed 1/2/13 In re A.M.
CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re A.M.
B.B. et al.,
Petitioners
and Respondents,
v.
M.M.,
Objector
and Appellant.
E054898
(Super.Ct.No.
RIA019240)
OPINION
APPEAL from the Superior Court of
County. James A. Cox,
Judge. Reversed.
Konrad S. Lee, under appointment by
the Court of Appeal, for Objector and Appellant.
No appearance for Petitioners and
Respondents.
No appearance for Minor.
This court has previously addressed
a similar dispute between the parties. (
The prior opinion addressed the trial court granting the biological
father’s motion for judgment on the mother’s and stepfather’s petition to
terminate the biological father’s parental rights to his child, A.M. This court affirmed the trial court’s ruling,
concluding substantial evidence reflected the biological father never intended
to abandon A.M.
In August 2010, A.M.’s mother,
petitioner and respondent L.M. (Mother), again petitioned the trial court to
terminate the parental rights of A.M.’s biological father, objector and
appellant M.M. (Father). (Fam. Code,
§ 7822.)
name="_ftnref1" title="">[1] The trial court concluded
Father abandoned A.M. and terminated Father’s parental rights. Father appeals the termination of his
parental rights. First, Father asserts
the trial court erred by relitigating the termination issue due to the doctrine
of collateral estoppel. Second, Father
asserts the record does not support a finding that he intended to abandon his
son, A.M. Third, Father contends the
trial court abused its discretion by not following the recommendation made in
the social study report. We reverse the
judgment.
HISTORY
A. PRIOR
TRIAL COURT RULING
The facts in this subsection are
taken from this court’s prior opinion involving Mother and Father: “Mother and Father married in 1995 and A.M.
was born in July 1995. Father is named
on A.M.’s birth certificate. During the
marriage, Father abused alcohol. Mother
obtained a one-year restraining order against Father in 1996, which granted her
custody of A.M. Mother and Father
divorced in 1998. In December 1998,
Father entered the Delancey Street two-year, residential substance abuse
program. Father graduated from Delancey Street
in December 2000. Father regularly paid
child support for A.M. beginning in 2001.
Mother married B.B. in 2001.
“Father filed a request for
visitation with A.M. in February 2006.
Father had last seen A.M. in July 1997—A.M. believed B.B. was his
biological father until January 2007. In
October 2006, Father and Mother attended mediation to discuss visitation.
Mother agreed that Father should be allowed to establish gradual visitation
with A.M. On November 6, 2006, B.B. filed a stepparent adoption request. In the request, B.B. indicated that he would
ask the court to terminate Father’s parental rights to A.M. On November 22, 2006, B.B. filed the [first] petition to terminate Father’s parental
rights. On January 5, 2007, Mother moved to be joined as a party so that she could assist in
the termination of Father’s parental rights.
The court granted Mother’s motion for joinder. On July 17, 2007,
the trial court held a hearing on the petition to terminate Father’s parental
rights. After B.B. rested his case,
Father made a motion for judgment on the basis that B.B. and Mother failed to
prove Father abandoned A.M. The court
granted Father’s motion.â€
B. PRIOR
APPEAL
In the prior appeal, Mother
asserted, “the trial court erred by (1) applying the incorrect legal standard
when determining whether the evidence supported a finding that Father intended
to abandon A.M., and (2) violating Mother’s due process rights by denying her
the opportunity to present her case.â€
This court concluded the trial court applied the correct legal standards
when rendering its ruling. Further, this
court assumed the trial court violated Mother’s due process rights; the
assumption was made due to the lack of clarity in the record as to whether
Mother and B.B. shared counsel or whether Mother was self-represented. We held the assumed error was harmless
because (1) substantial evidence reflected Father did not intend to abandon
A.M., and (2) Mother failed to explain the issues she would have presently
differently than B.B.’s attorney.
In concluding substantial evidence
supported a finding Father did not intend to abandon A.M., this court cited the
following evidence: “In 1999 or 2000,
while Father was in the Delancey
Street program, Father
gave his mother Christmas gifts to give to A.M.
Father wrote four letters to Mother regarding A.M., dated September
2001, October 2001, December 2001 and August 2002. Father spoke to Mother on the telephone “a lotâ€
regarding A.M.; however, we note Mother denied speaking to Father on the telephone. Father paid child support for A.M. from 2001
through December 2006. In January 2007,
Mother terminated the child support enforcement action against Father, but
Father opposed the termination, so that he could continue to pay child
support. Father filed for visitation
with A.M. in February 2006. Father
explained that he did not request visitation with A.M. until 2006 because
Mother told Father that he “would never see [his] son,†which made Father very
emotional.†This court filed its prior
opinion on June
29, 2009.
C. CURRENT TRIAL COURT CASE
1. PETITION
On August 31, 2010, Mother filed a
petition to terminate Father’s parental rights.
In Mother’s petition she alleged the following: The Orange County District Attorney’s Office (OCDA)
closed its child support enforcement action against Father on February 1, 2007,
at Mother’s request. Despite a court
order for child support, Father made his last support payment on January 1,
2007. Father was $16,555 in arrears in
August 2010.
Father did not see A.M. from
November 22, 1995, to August 21, 2006.
Father filed for visitation with A.M. on August 21, 2006. Father and A.M. visited three times during
August 2008. After the third meeting,
Father wrote a letter to the trial court requesting the court’s visitation
order “‘be put on hold.’†Father did not
visit A.M. again, or otherwise communicate with A.M.
2. PROBATION
OFFICER’S REPORT
a) Mother
The Riverside County Probation
Department filed a report in this case on August 4, 2011. The report reflects the following facts from
Mother’s point of view: In July 2007,
Father twice visited A.M. “Shortly
thereafter,†Father filed for custody of A.M. in Orange County Superior Court
(OCSC). The custody trial took place in
February 2008. The OCSC granted Father
visitation with A.M. Father visited A.M.
once between February and July 2008. In
August 2008, three visits took place. Father
did not visit A.M. again. In October
2008, Father sent a letter requesting the visits “be put on hold.â€
b) Father
The report reflects the following
facts from Father’s point of view: The
OCSC granted Father full custody of A.M.; however, Father did not want to
remove A.M. from Mother’s care, so he permitted A.M. to stay with Mother. During the August 14 visit, A.M. appeared
“angry and agitated.†A.M. told Father
and the visit supervisor that he had been forced to attend the visit and did
not want to be there. Father and the visit
supervisor tried to calm A.M., but after a few minutes he left. Father was frustrated to see A.M. so angry,
when he was trying to introduce himself to A.M.
Father did not contact A.M. after the August 14 visit because “he saw
how angry [A.M.] was and he wanted to give [A.M.] time to calm down. [Father] hoped with time [A.M.] would come to
realize on his own his desire to get to know his father.†“On a few occasions†after the August 14
visit, Father contacted A.M. on his cellular telephone, but the calls were not
returned.
Father stopped paying child support
for A.M. because (1) Mother closed the enforcement case, and (2) Mother said
she did not want any money from Father.
Father did not continue to pursue visitation with A.M. because he felt
“continuing the Court battles was not in [A.M.’s] best interests.†Father has always had a bedroom set up in his
home for A.M., and will continue to do so because he believes he will be given
an opportunity to bond with A.M. in the future.
c) A.M.
A.M. was interviewed in July 2011,
when he was 16 years old. The report
provides the following facts from A.M.’s point of view: A.M. has no feelings for Father. During the August 14 visit, A.M. mocked a
hand gesture Father made. Father became
angry, called A.M. a “‘freak boy,’†and said, “‘Don’t come to me looking for
money when you turn 18.’†A.M. became
upset and left the visit. A.M. has not
had any contact with Father since August 14, 2008; he has not received any
cards, gifts, or letters from Father.
A.M. would like Father’s parental rights terminated so A.M. could be
adopted by B.B.
d) Probation Officer’s Evaluation
The probation officer who
interviewed Mother, Father, and A.M. concluded Father did not have contact with
A.M. for over one year, but that it appeared Father never intended to
financially abandon A.M. The probation
officer reasoned that Mother did not want financial support from Father, and
therefore Father should not be faulted for not sending money to Mother. The probation officer concluded Father did
not intend to abandon A.M., and it would not be in A.M.’s best interests to
terminate Father’s parental rights. The
probation officer recommended Mother’s petition be denied, and the court refer
the matter to mediation to set a visitation
schedule.
e) Trial
(1) Father’s
Testimony
On December 10, 2001, Father was
ordered by a court to pay $385 per month for A.M.’s child support. Father never sought to modify the child
support order. Father explained that
after the district attorney agreed to Mother’s request to cancel its
enforcement case, Father received a document, with “the filing number of the
actual court case†reflecting the case had been closed. Father contacted “Orange County child support
and they said there was no more case, there’s no one to pay . . . .†Father tried to “file a case to force them to
take money from [him],†but the request was denied. Father was informed “there was no physical
means or no vehicle for [him] to pay them any further money, that [Mother]
closed the entire case. There’s no
case.†Thus, Father explained he never
modified the child support order because “[t]here’s no order to modify.†Father was unaware Mother only closed the
child support enforcement case, and not the case that created the child support
order.
Father did not send money directly
to Mother because he was frightened of her, and he wanted a third party, such
as the court, to retain records of his payments. Father was frightened of Mother because she
threatened to sue Orange County if it continued collecting child support from
Father, and she threatened the judges, attorneys, and counselors involved in
the case with “some kind of lawsuit or sanctions.†Father stated every interaction with Mother
“has turned into a nightmare, manipulated and twisted.†Father feared any direct contact with Mother
would lead to accusations that he was threatening her and further days in
court. Due to Father’s criminal history
(prior to his sobriety), Father assumed law enforcement would believe
Mother. Father’s criminal history
consisted of six kidnappings and multiple robberies; Mother had a restraining
order against Father prior to his sobriety.
During Mother’s and Father’s marriage, they both engaged in violent
behavior toward one another.
Father had made all of his child
support payments for six or seven years, until Mother ended the child support
enforcement case. Over the years, Father
had driven from Nevada to California over 30 times to appear at court hearings
concerning A.M.; Father had spent $300,000 in legal fees. Father explained that around the same time he
filed for visitation in Orange County, Mother was petitioning for the
termination of his parental rights in Riverside County, thus there were
multiple court hearings. Father also
hired a private investigator to check on A.M. and “look into†B.B. Father carried a photograph of A.M. in his
wallet and thought about A.M. every day.
During the first August 2008 visit,
B.B. accompanied A.M. and Father. B.B.
secretly recorded a conversation between Father and A.M. Afterwards, the trial court ordered B.B. to
stay away from Father and A.M.’s visits, and for Mother to transport A.M. to
the visits. At the third August 2008
visit, B.B. drove A.M. to the bowling alley, and then remained in the parking
lot during the visit. Mother and B.B.
violated the court’s order because Mother needed to attend school during the
visitation. Father had driven five hours
to visit with A.M. for one hour at the bowling alley.
Between August 15, 2008, and August
30, 2010, Father twice tried to contact A.M. by telephone. On one occasion Father left a voice message;
on the second occasion Mother hung up on Father. Father did not try to reinitiate visitation
because he feared it would lead to Mother and B.B. requesting “another day in
court that costs [Father] $5,000.â€
Father testified, “I would have [to] go back to the judge in an ex
part[e] that costs me $5,000, months of work just to explain that [Mother and
B.B.] have once again done something else to violate [a] court order or to
violate some law, and then I would be reissued another visitation? To what?
To what end? When were you
[(Mother)] going to stop?â€
Father asked for the visitation
order to be placed on hold after the August 2008 visits so Mother and B.B. could
“cool off.†Father did not try to
contact Mother or B.B. about visitation because he was waiting for them to
contact him, apologize for B.B. being at the bowling alley visit, and say “our
antics are done.†Father has lived in
his home in Nevada for approximately eight years. During that time, Father has maintained a
furnished bedroom for A.M. Every year
for A.M.’s birthday, Father bought a collector’s edition Disney watch for
A.M. Father was collecting the watches
and planned to present them to A.M. during the reunification process. Father did not send the watches to A.M.
through the years because gifts he sent in earlier years were not given to
A.M.; Father speculated Mother disposed of the gifts. Additionally, there was a court order
requiring Mother and Father discuss any gifts Father intended to give to A.M.
During trial, Father’s attorney
asserted the “no support, no communication with the intent to abandon†issue
had already been litigated. The trial
court asserted the current case covered the years after the previous case, so
the issue was not res judicata.
(2) A.M.’s
Testimony
A.M. was 16 years old at the time of
trial. A.M. first learned about Father
when A.M. was 12 years old; A.M. was excited to meet Father. During the first reunification counseling
meeting A.M. asked why Father was not present during A.M.’s childhood. Father explained Mother threatened to take
A.M. to Panama, and that B.B. took A.M. from Oregon to California. After the visit, Mother showed A.M. his
passport, which reflected a visit to Panama.
A.M. did not believe Father’s story, because he felt he and Mother would
have stayed in Panama if she were going to kidnap him. Thus, at the second counseling appointment,
A.M. was upset at Father, because he felt Father lied to him about his reasons
for missing A.M.’s childhood. A.M. left
in the midst of the second visit because the counselor did not permit A.M. to
question Father.
At the August 2008 visit, which took
place at the bowling alley, A.M. mocked Father’s hand gesture, and Father
called A.M. “‘freak boy.’†A.M. was
upset by the name calling and left the bowling alley. Father went out to the parking lot, saw B.B.,
and began yelling at B.B. A.M. did not
hate Father, but felt nothing for him.
A.M. was no longer interested in getting to know Father because he felt
Father lied to him about his reasons for missing A.M.’s childhood and Father
called him “freak boy.†A.M. plans to
change his last name to B.B.’s last name when he turns 18.
(3) B.B.’s
Testimony
Mother requested the OCDA close the
child support enforcement case to “prove the point†that Father would not pay
child support unless forced to do so.
B.B. explained that he and Mother lost the prior case to terminate
Father’s parental rights solely because Father had been making forced child
support payments. B.B. filed his 2006
Riverside County petition to terminate Father’s parental rights after Father
filed his 2006 Orange County petition for custody of A.M. B.B. filed the termination petition because
Father was seeking full custody of A.M.
B.B. recalled a time when A.M. was
two years old and Father arrived at B.B.’s home. B.B. also remembered Father trying to contact
Mother about A.M. when A.M. was seven or eight years old.
(4) Mother’s
Testimony
In 1997, Mother filed to divorce
Father. In 1998 or 1999, when A.M. was
two years old, Father stopped by Mother’s house. In 2001, Father began paying child support
for A.M. Father had a “perfect recordâ€
of paying child support. In 2006, Father
filed for visitation with A.M. A few
months later, Mother made her first request for the OCDA to close A.M.’s child
support enforcement case. Mother wanted
to close the enforcement case to see if Father would continue to pay child
support when not forced to do so by the OCDA.
The OCDA wanted to continue collecting child support for A.M. Mother then made a second request for the
OCDA to close its enforcement case.
On January 11, 2007, Mother
announced at a hearing (but not under oath) that she requested to stop the
child support enforcement case. On April
19, 2007, Mother again said during a hearing that she planned to close the
enforcement case. Judge Webster
recommended a trust fund be opened in A.M.’s name, and the child support money
be placed in the trust. On July 17,
2007, during the first termination trial, Mother testified that she was closing
the enforcement case, but not terminating the child support order. Mother never made a written or oral request
that Father continue paying child support directly to her.
In 2007, the OCSC ordered the
parties to participate in reunification counseling. The counselor’s report reflected A.M. “was
being trained and poisoned by [Mother] to hate [Father].†The counselor concluded Mother was an alienating
parent who was “obsessed with hatred and filled with venom.†The counselor believed Mother “was going to
run away to Panama with [A.M.], and that [A.M.] was . . . a ticking time bomb
waiting to explode.â€
The OCSC scheduled three visits in
August 2008 because Father planned to be working in Irvine for three weeks
during that August. In October 2008,
Father sent a letter requesting his visitation with A.M. be placed on
hold. In June 2009, this court affirmed
the ruling denying the first petition to terminate Father’s parental
rights. Mother did not hear from Father
for two years, until she filed the petition in the instant case to terminate
his parental rights. Mother did not file
contempt proceedings in response to Father’s failure to pay child support.
(5) Transcripts
The trial court in the instant case
reviewed a reporter’s transcript from the prior termination case. The transcript reflected an April 19, 2007
hearing before Judge Webster. The
relevant portion of the 2007 transcript provides:
“[Mother]: I’d like to clarify, go on the record that I
have not closed the child support case.
That has to be done by a court order.
I closed the child support enforcement case through the [OCDA].
“[Father’s Attorney]: Which is, essentially, he’s not paying child
support which is the bottom line.
“[Mother]: By choice.
“[Father’s Attorney]: Not by choice. He wants to pay child support.
“The Court: Why don’t you just have him put it into an
account in trust for the child[?]
“[Father’s Attorney]: Which he will do. That’s not a problem. [¶]
But we wanted to keep the case open but they would not let us because
mom requested the case be closed.†It
appears Father was not present during this conversation.
The trial court in the instant case
also reviewed a portion of the reporter’s transcript from the July 17, 2007,
trial concerning terminating Father’s parental rights. The July 17 transcript reflects Father was
present in court when the following exchange occurred during the cross-examination
of Mother:
“[Father’s Attorney]: [I]s it true that you formally requested the
Orange County Department of Child Support Services to terminate and close your
file with respect to collection of support?
“[Mother]: The enforcement action, yes. I requested that the enforcement action be
stopped but not that the court-ordered child support be stopped.â€
(f) Judgment
The trial court issued a written
judgment. The trial court found it was
undisputed that Father had not paid child support “since before the lower
court’s ruling in 2007, and has failed to communicate with the minor for a
period in excess of one year, since August 2008.†Thus, the trial court concluded the evidence
satisfied the requirements for the court to presume Father abandoned A.M. The trial court then addressed whether Father
had rebutted the abandonment presumption by proving he did not have the intent
to abandon A.M.
The trial court noted Father’s
defense was that he had a good-faith belief he did not need to pay child support
after Mother closed the enforcement case.
The trial court found Father’s defense to be “compelling,†until the
court read the 2007 reporter’s transcripts.
The trial court concluded the 2007 transcripts revealed Mother’s intent
to end the child support enforcement action for the purpose of seeing whether
Father would continue paying child support when not forced to do so by the
OCDA. The trial court further noted a
parent has a duty to provide child support even if a court order is not in
place.
The trial court found Father blamed
Mother and B.B. for the lack of communication between Father and A.M. However, the trial court did “not believe the
excuse to be compelling.†The trial
court noted Father had previously succeeded in gaining visitation with A.M.,
and visits were just beginning when Father “abandoned the effort.†The trial court also observed that A.M. was
16 years old and wanted to be adopted by B.B.
Based upon the foregoing, the trial court terminated Father’s parental
rights to A.M. for the purpose of permitting B.B. to adopt A.M.
A. COLLATERAL
ESTOPPEL
Father asserts the trial court erred
by permitting relitigation of the abandonment issue, which was settled by this
court in June 2009. We disagree.
“‘Collateral estoppel precludes
relitigation of issues argued and decided in prior proceedings. [Citation.]
Traditionally, [courts] have applied the doctrine only if several
threshold requirements are fulfilled.
First, the issue sought to be precluded from relitigation must be
identical to that decided in a former proceeding. Second, this issue must have been actually
litigated in the former proceeding.
Third, it must have been necessarily decided in the former
proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the party against whom preclusion is
sought must be the same as, or in privity with, the party to the former
proceeding. [Citations.]’ [Citation.]â€
(Hernandez v. City of Pomona
(2009) 46 Cal.4th 501, 511 (Hernandez).)
Of the foregoing elements, the one
in dispute in this case is the first:
whether the abandonment issue is identical to the issues decided in the
2009 case. “For purposes of collateral
estoppel, an issue was actually litigated in a prior proceeding if it was
properly raised, submitted for determination, and determined in that
proceeding. [Citation.] In considering whether these criteria have
been met, courts look carefully at the entire record from the prior proceeding,
including the pleadings, the evidence, the jury instructions, and any special
jury findings or verdicts.
[Citations.] ‘The “identical
issue†requirement addresses whether “identical factual allegations†are at
stake in the two proceedings, not whether the ultimate issues or dispositions
are the same. [Citation.]’ [Citation.]â€
(Hernandez,
Section 7822, subdivision (a)(3),
provides a petition for terminating a person’s parental rights may be brought
if “[o]ne 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.â€
In the prior case, the petition to
terminate Father’s rights was filed in November 2006. In the prior petition it was alleged Father
abandoned A.M. by not contacting A.M. for the 10-year period between 1996 and
2006. The trial court found that
Father’s regular payment of child support showed he did not intend to abandon
A.M. Based upon that finding the court
granted Father’s motion for judgment.
(Code Civ. Proc., § 631.8.)
In the current case, the petition to
terminate Father’s rights was filed in August 2010, and asserted Father failed
to communicate with A.M. from August 15, 2008, to August 31, 2010. The current petition further alleged Father
had not paid child support since January 1, 2007. The court terminated Father’s parental rights
due to Father’s failure to communicate beginning in 2008, and failure to
support beginning in 2007.
Based upon our review of the
petitions and the judgments, the two cases did not involve identical factual
allegations. The first case concerned
factual allegations covering 1996 to 2006, and the current case concerns
factual allegations related to 2007 to 2010.
Since the cases involve different factual allegations, we conclude the
abandonment issue sought to be precluded from relitigation is not identical to
the abandonment issue decided in the former
proceeding. Accordingly, collateral
estoppel does not apply in this case.
Father asserts collateral estoppel
is applicable in this case because it is “virtually the same†as the prior
case—involving “identical parties and the identical issues.†Father’s argument is not persuasive, because
whether the ultimate issues or dispositions are the same is not the relevant
inquiry; the question is whether the factual allegations are identical, and in
this case they are not. (
B. SUBSTANTIAL EVIDENCE
Father asserts substantial evidence
does not support the finding he intended to abandon A.M. We agree.
As set forth ante, a person’s parental rights may be terminated if he has abandoned
his child. “Abandonment occurs when 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.’ [Citations.]†(In re
Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 500.)
“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].â€â€™
[Citation.] ‘The . . . failure to
provide support, or failure to communicate is presumptive evidence of the
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 . . . .’ [Citation.]â€
(In re Adoption of Allison C.
(2008) 164 Cal.App.4th 1004, 1010.)
“An appellate court applies a
substantial evidence standard of review to a trial court’s findings under section
7822. [Citation.] Although a trial court must make such
findings based on clear and convincing evidence (§ 7821), this standard of
proof ‘“is for the guidance of the trial court only; on review, our function is
limited to a determination whether substantial evidence exists to support the
conclusions reached by the trial court in utilizing the appropriate
standard.â€â€™ [Citation.] Under the substantial evidence standard of
review, ‘“[a]ll conflicts in the evidence must be resolved in favor of the
respondents and all legitimate and reasonable inferences must be indulged in to
uphold the judgment.â€â€™ [Citation.] Abandonment and intent ‘“are questions of
fact for the trial judge. . . . His
decision, when supported by substantial evidence, is binding upon the reviewing
court.â€â€™â€ (In re Adoption of Allison C.,
supra, 164 Cal.App.4th at pp. 1010-1011, fns. omitted.)
Father stopped paying child support
in February 2007 after Mother terminated the enforcement case. In July 2007 Father was present in court when
Mother testified she “requested that the enforcement action be stopped but not
that the court-ordered child support be stopped.†Father contacted “Orange County child support
and they said there was no more case, there’s no one to pay . . . .†Father tried to “file a case to force them to
take the money from [him],†but the request was denied. Father was informed “there was no physical
means or no vehicle for [him] to pay them any further money, that [Mother] closed
the entire case. There’s no case.†Thus, Father explained he never modified the
child support order because “[t]here’s no order to modify.â€
The record reflects Father did not
understand he could continue paying Mother.
Father tried to send child support via the OCDA, but was rejected. Father did not send money directly to Mother
because he feared having any direct contact with her. Father was not present when the trial court
suggested the idea of creating a trust account for A.M. Further, it appears from the record the
attorney representing Father, who was present when the trust suggestion was
made, was no longer representing Father approximately two months after the
suggestion was presented. Thus, it is
unclear if the trust idea was relayed to Father.
While the record reflects Father was
present when Mother testified about only ending the enforcement action, it
would be reasonable for Father to believe the statement from the OCDA that the
case was over, specifically that there was “no vehicle for [him] to pay them
any further money, that [Mother] closed the entire case. There’s no case.†In other words, the evidence that Father was
present when Mother said she only ended the enforcement action is not clear and
convincing evidence of missing payments with an intent to abandon. Rather, it appears Father missed child
support payments due to confusion about how to give the money to Mother. Father mistakenly believed the child support
case ended, and he feared having direct contact with Mother. Thus, Father’s intent in not sending payments
was avoiding Mother, as opposed to abandoning A.M.
Mother has not submitted a
respondent’s brief in this matter, so we cannot address her arguments. The trial court reasoned Father failed to pay
child support while intending to abandon A.M. because Father was notified by
Mother’s testimony in 2007 that she only closed the enforcement portion of the
child support case. We find the trial
court’s reasoning to be problematic because Father contacted the OCDA to request
the ability to pay child support, but was denied.
Father stated he did not pay Mother
directly because he feared her. The
trial court itself described Mother as “a very assertive woman to the point of
almost obnoxiousness.†Father described
a mutually violent relationship between himself and Mother. A reunification counselor found Mother was
“obsessed with hatred and filled with venom.â€
Mother threatened to sue Orange County if it continued collecting child
support from Father, and she threatened the judges, attorneys, and counselors
involved in the case with “some kind of lawsuit or sanctions.†Thus, it appears there is a basis for Father
fearing Mother because she is hate-filled, has a history of violent behavior,
and was threatening legal action against people who collected child support on
behalf of A.M. In sum, the evidence in
the record does not reflect an intent to abandon A.M., instead, it reflects
either confusion about the status of the court order or a desire to avoid
Mother.
Next, we address Father’s failure to
communicate with A.M. At the last visit
at the bowling alley, A.M. became upset and walked out of the bowling
alley. Father then yelled at B.B. in the
bowling alley parking lot, because B.B. violated the trial court’s order by
transporting A.M. to the visit and being at the visit location. Father did not try to contact Mother or B.B.
about scheduling another visitation appointment because he was waiting for them
to contact him, apologize for the bowling alley incident, and say “our antics
are done.â€
Father did not go to court to
request a court ordered visitation schedule because he believed it would lead
to Mother and B.B. requesting “another day in court that costs [Father]
$5,000.†Father spent $300,000 in legal
expenses trying to gain visitation with A.M. and/or custody of A.M. Father lived in Nevada, but repeatedly drove
to Orange and Riverside Counties to appear at hearings concerning A.M. Father was a carpenter and during the trial
in this case he was having trouble making his house payment. Father explained that he was having
difficulty appearing for trial in the instant case due to financial
issues. When the court asked if the
parties could finish the trial by the end of the week, Father told the court,
“I don’t have the financial wherewithal to do that. This is costing [me and my romantic partner]
our wages per day, hotels and meals right now and to rent a vehicle it’s
not—it’s costing us [$]500 plus all these days.â€
Thus, it appears Father did not seek
a visitation schedule through the trial court because (1) he had already spent
$300,000 in attempts to see A.M.; (2) he was suffering financial hardship; and
(3) he believed resorting to the courts would cost an additional $5,000. In other words, Father’s intent in not
seeking a court ordered visitation schedule was not to abandon A.M., but to
preserve financial resources. This
intent is confirmed by the evidence that Father maintained a furnished bedroom
in his home for A.M., should A.M. ever want to stay with Father. It is unlikely Father would have maintained a
bedroom for a child he intended to abandon.
Father purchased gifts for A.M., but
did not send them because he believed Mother disposed of the gifts Father sent
A.M. in earlier years. Additionally,
there was a court order requiring Mother and Father to discuss any gifts Father
intended to give to A.M. Accordingly,
Father’s failure to contact A.M. via gifts or cards does not reflect an intent
to abandon; rather, it reflects a desire to avoid Mother and avoid the gifts
being discarded.
The trial court found Father
intended to abandon A.M. because Father’s reasons for not communicating with
A.M. involved blaming Mother’s and B.B.’s bad behavior. We agree that Father cited Mother’s and
B.B.’s behavior as a reason for not contacting A.M.; however, we disagree that
this shows an intent to abandon. Rather,
it reflects an intent to not attract attention from Mother by enforcing
visitation. Father wanted a relationship
with A.M., as evinced by the money spent on legal fees, driving back and forth
from Nevada to California, maintaining a room for the child, and purchasing
gifts. However, Father believed Mother
to be a burdensome obstacle in his path to building a relationship with A.M.,
and after fighting with her from 2006 to 2008, finally decided to take a break
after the bowling alley incident.
Next, the trial court found Father’s
act of surrendering visitation shortly after visits had begun indicates an
intent to abandon A.M. While we agree
Father’s decision to abandon visitation efforts may not have been the preferred
choice, we disagree that it reflects an intent to abandon. As set forth ante, Father believed obtaining a visitation schedule from Mother
or B.B. would lead to further confrontation, and obtaining a schedule from the
court would be too expensive. We note
Father could have tried scheduling visits through the person who supervised the
visits; however, it seems Father feared that would also lead to an expensive
court action by Mother.
In sum, all the evidence reflects
Father wanted a relationship with A.M., but wanted to avoid further legal
expenses and confrontations with Mother and/or B.B. Accordingly, it does not appear Father
intended to abandon A.M. As a result, we
conclude the trial court erred by granting Mother’s petition to terminate
Father’s parental rights. We will
reverse the trial court’s decision, because the petition should be denied.
C. PROBATION REPORT
Father asserts the trial court erred
by not following the recommendation in the probation officer’s report. We do not address this contention because it
has been rendered moot by our reversal of the trial court’s order. (See Ramirez
v. Nelson (2008) 44 Cal.4th 908, 920 [not addressing an issue that has been
rendered moot by the court’s holding].)
The judgment is reversed. The trial court is directed to enter an order
denying Mother’s petition. Father is
awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting
P. J.
KING
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Family Code unless indicated.
