In re Angelina S.

 

 

 

 

Filed 1/30/14  In re Angelina
S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 ANGELINA S., a Minor.
PATRICIA G.,   Petitioner and Respondent,                           v.   ALEJANDRO S.,   Objector and Appellant.	F067540   (Super. Ct. No. S-1501-AT-3217)     >OPINION

 

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL
from a judgment of the Superior Court of
Kern County.  James L. Compton,
Judge.

            Catherine
C. Czar, under appointment by the Court of
Appeal, for Objector and Appellant.

            No
appearance for Petitioner and Respondent.

-ooOoo-

            Appellant Alejandro S. (father)
appeals from the trial court’s order terminating his parental rights pursuant
to Family Code section 7822.href="#_ftn2" name="_ftnref2" title="">^[1] 
He contends there was no substantial evidence that he left his daughter
Angelina S. with her mother with the intent to abandon her.

            We disagree and affirm the court’s
order.  

FACTS AND PROCEDURAL HISTORY

            Father and Patricia G. were married
in 2001 and divorced in 2005.  They had
one child together, Angelina, who was born in 2003. 

            According to Patricia, father was
abusive toward her, and she did not want Angelina exposed to violence.  In April 2005, the Tulare County Superior
Court issued a domestic violence restraining order against father requiring him
to stay 50 yards away from Patricia.  On June 15,
2005, Patricia
was driving into her garage when father approached her car, broke the driver’s
side window, and grabbed her.  As a
result of this incident, father entered a plea of no contest to href="http://www.sandiegohealthdirectory.com/">corporal injury to a spouse
(Pen. Code, § 273.5, subd (a)) and criminal threats (Pen. Code,
§ 422) and was sentenced to a term of 16 months.  Father was released in about March 2006. 

            On August 15,
2006,
father and Patricia attended family court mediation on visitation and custody
issues.  The parties agreed that Patricia
would have legal and physical custody of Angelina, and father would have
supervised visitation.  On November 28, 2006, the parties agreed that father would have
unsupervised visitation every other weekend and that both parents would share
legal custody. 

            On June 15,
2007,
father was arrested for alleged abuse of his girlfriend.  Father went to trial, and on August 30,
2007, was
convicted of corporal injury to a cohabitant (Pen. Code, § 273.5).  He was sentenced to nine years in
prison. 

            Patricia married Mario G. in
2011.  They have a daughter
together.  Angelina lives with her
mother, stepfather, and half sister.  Angelina
told a family court services
investigator that she would like to be adopted by her stepfather.  She also said she did not remember her father
and did not want to see him. 

            On August 27,
2012,
Patricia filed a petition to declare Angelina free from
the parental custody and control of father under section 7822.  She alleged that father had not had any
contact with Angelina for over five years and had not paid any child
support.  Patricia later filed an amended
petition seeking termination of father’s parental rights pursuant to
section 7825.href="#_ftn3"
name="_ftnref3" title="">^[2] 

            Father
objected to the petition, and a trial on the petition was held on May 24, 2013. 

            Patricia
testified that father had no communication with Angelina since his arrest in
2007.  He had not called or sent letters
to Angelina.  In May 2013, father’s
brother delivered some gifts and $100 to Patricia’s brother for Angelina.  Before the recent delivery of gifts and
money, Patricia’s last contact with father’s family was in the summer of
2007.  At that time, father’s mother, Eva
S., called Patricia’s cell phone and asked to see Angelina.  Patricia dropped Angelina off with Eva, and Angelina
was with Eva for about three or four hours. 
Patricia continued to have the cell phone number Eva had used to call
her until around October 2008.  No one
from father’s family called her at that number. 
Patricia continued to work at the job she had when she was married to
father until 2009.  Father’s family knew
where she worked, but no one from his family tried to contact her at her job. 

            After
he was arrested in June 2005 for violating the restraining order, father did
not have contact with Angelina until August 2006.  Then, he had visitation with Angelina on the
weekends.  Patricia never denied father
or any of his family contact with Angelina. 
Father knew the address of the house where Patricia grew up (the family
home) because he sent letters to Patricia in 2000 addressed to the family
home.  Patricia’s brother still lives in
the family home, and that is where father’s gifts to Angelina were delivered. 

            Patricia’s
sister testified that she lived in the family home from 2007 to 2012, and she
was not aware of any of father’s relatives coming to the house to ask about
Angelina.  She did see Eva at the end of
2012 at a bus stop.  Eva asked her if
Angelina was big and how she was doing, but she did not ask to see
Angelina.  Eva did not say she had any
cards, letters, or drawings to give to Angelina. 

            Father
testified that he had no contact with Angelina since his arrest in June
2007.  He was still serving his prison
term at the time of the hearing and expected to be released in September
2014.  Asked if he had sent any letters
or cards to Angelina, he said that he had a Bible with a journal and he wrote
letters to his daughter constantly in the journal.  He was going to send it home or give it to
her himself.  He had some letters, too,
but they were all lost when he was transported from prison to court.  He made a jewelry box out of wood and sent it
to his mother to give to Angelina.  He
also made her plaques that say “Angie’s Room.” 
Father sent those items sometime in 2012.  He testified that he also sent a few letters
to his mother to give to Angelina in 2010. 
He said that was the first chance he had to send things home to his
daughter.  He also wanted his mother to
give Angelina money for Christmas. 

            Later,
father testified that he wrote letters to his daughter which he sent to his
mother at least once a month from 2007 until 2010.  He did not ask his relatives to bring any of
the letters to court because “it slipped [his] mind.”  At one time, father knew Patricia’s brother’s
address, but he forgot it.  He testified
that, when he had visitation with Angelina, they loved spending time with each
other and had a strong bond.  He
testified he did not intend to abandon her. 


            Father’s
mother Eva also testified.  She recalled
father asking her to give Patricia money once or twice.  Eva did not give any money because Patricia’s
siblings did not want to give her any information about Patricia.  Father gave Eva gifts to give Angelina.  He sent her a jewelry box and two plaques
some time in 2012 or 2013.  These were
the only gifts he sent her.  Eva delivered
the gifts in May 2013.  She took them to
Patricia’s brother’s house.  Eva
testified that she did not know Patricia’s phone number.  She did not know where Patricia worked.  At first, Eva could not recall whether she
had telephone conversations with father after 2007.  Eva was in Mexico
from 2008 to 2011.  Later in her
testimony, Eva recalled that she spoke to father by telephone when she was in Mexico
and he was in prison.  She testified that
father asked her to buy Angelina a gift at Christmas from 2009 through
2012. 

            In
her closing statement, Patricia’s attorney argued that father had not done enough
to try to keep in contact with Angelina. 
There were many ways he could have gotten Patricia’s brother’s address
to mail Angelina letters.  His family
knew the address because they delivered a few gifts that month.  She argued, “It’s more than a dollar short and
more than a day late that two weeks before this hearing for an abandonment to
finally bring some gifts and a hundred dollar[s] â€¦ for the child .…”  Further, it was not believable that father
had written so many letters to Angelina, but he had none to offer the
court. 

            Counsel
for Angelina pointed out that the father and Eva presented inconsistent
testimony.  Father said he was sending
letters to his mother to give to Angelina, but Eva was in Mexico
during most of that time.  Angelina’s
attorney asserted it would be in her best interest to terminate parental
rights. 

            After
hearing the testimony and argument, the court issued its decision granting the
petition under section 7822.  The
court stated:

“[A]s to the willful abandonment, I do
find there has been a period in well excess of a year where there has not been
contact by the father.  He did not make
the good faith effort to try and maintain contact.  And based upon that it was willful.  I realize he’s in jail.  I realize that makes it difficult.  I realize that causes problems.  If grandmother said, yeah, she was getting
the letters, she wasn’t getting them, I don’t know what happened to those
letters.  They’re not here.  She wouldn’t deliver them because she wanted
to do it in person.  [¶]  I do find that there has been â€¦ a
willful abandonment in this matter in excess of a year where the child has been
left with the mother.” 

            A
judgment declaring Angelina free from the parental custody and control of
father was filed on June 20, 2013.  Father filed a notice of appeal on June 26, 2013. 

DISCUSSION

            Section 7822
allows the court to declare a child free from the custody and control of a
parent who “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).) 

            We
apply the substantial evidence standard of review to the trial court’s findings
made under section 7822.  (>Adoption of Allison C. (2008) 164
Cal.App.4th 1004, 1010 (Allison C.).)  “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.”’  [Citation.]”  (Id.
at pp. 1010-1011.)  The appellant
has the burden of showing the trial court’s finding or decision is not
supported by substantial evidence.  (>Id. at p. 1011.)

            “[A]
section 7822 proceeding is appropriate where ‘three main elements’ are
met:  â€˜(1) the child must have been
left with another; (2) without provision for support or without
communication from â€¦ 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 â€¦ to abandon [the
child].”’  [Citation.]”  (Allison
C., supra, 164 Cal.App.4th at
p. 1010.) 

            In
this appeal, father contends substantial evidence did not support the court’s
findings that (1) father left Angelina with her mother and (2) he did
so with the intent to abandon her. 
Father implicitly concedes that he did not communicate with or support
Angelina for more than a year. 

            “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.’ 
[Citations.]”  (>In re Marriage of Jill & Victor D.
(2010) 185 Cal.App.4th 491, 504 (Marriage
of Jill & Victor D.).)  While “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 â€¦, the parent’s later voluntary inaction may constitute a
leaving with intent to abandon the child [citation].”  (Ibid.)

            Here,
father cannot be found to have “left” Angelina with her mother based >solely on the family court order
granting Patricia physical custody of her. 
Similarly, we do not conclude that father’s incarceration by itself
establishes that he left Angelina for purposes of section 7822. 

            On
the other hand, “[n]umerous appellate decisions have long agreed that the
leaving-with-intent-to-abandon-the-child requirement of section 7822 can
be established by evidence of a parent’s voluntary inaction after an order
granting primary care and custody to the other parent.”  (Marriage
of Jill & Victor D., supra,
185 Cal.App.4th at p. 504.)  In >Marriage of Jill & Victor D., after
the mother and father separated, the family court issued a restraining order
against the father and awarded custody of the minor children to mother.  (Id.
at p. 494.)  The court ordered the
father to participate in a psychological evaluation and drug testing prior to
having any contact with the children.  (>Id. at pp. 495-496.)  The father twice sought to modify the
visitation order, and his requests were denied. 
(Id. at p. 496.)  Later, the mother petitioned to terminate
father’s parental rights under section 7822, and the petition was
granted.  (Marriage of Jill & Victor D., supra, at pp. 497,
500.)  On appeal, the father argued that,
because he was deprived of custody of the children by judicial decree and not a
voluntary act on his part, there was insufficient evidence he left the children
with their mother.  (Id. at p. 503.)  The
Court of Appeal disagreed, noting, among other things, that the father did not
seek modification of the visitation order for over three years and made no
effort to comply with the conditions that would have allowed him to have
contact with the children.  (>Id. at p. 505.)  The court held, “[t]his inaction is
substantial evidence that father voluntarily surrendered his parental role and
left the minors within the meaning of section 7822.”  (Id.
at p. 506.)

            Further,
“‘being incarcerated does not, in and of itself, provide a legal defense to
abandonment of children.’”  (>Allison C., supra, 164 Cal.App.4th at p. 1012.)  In Allison
C., the father was incarcerated for domestic violence against the mother
and, later, for burglary and driving under the influence.  (Id.
at pp. 1007, 1009.)  In finding
substantial evidence that the father left his child in her mother’s care, the
Court of Appeal observed that father’s “actions underlying his incarcerations
for domestic violence, burglary, and driving under the influence were
voluntary” and were evidence that the father voluntarily abdicated the parental
role.  (Id. at p. 1012.) 

            In
this case, father’s actions leading to his incarceration were voluntary.  Father then failed to communicate with
Angelina for over five years while he was in prison.  He claimed he had no way of getting letters
to Angelina, but this claim was suspect in light of the fact that his mother
was able to deliver gifts to Angelina’s maternal uncle just before the trial in
May 2013.  Considered together, father’s
actions and subsequent inaction were substantial evidence that he voluntarily
surrendered his parental role and left Angelina with her mother within the meaning
of section 7822. 

            Father
cites In re Jacklyn F. (2003) 114
Cal.App.4th 747, 755 (Jacklyn F.),
for the proposition that failure to communicate or support cannot be used to
establish that a parent has “left” a child. 
In Jacklyn F., the mother had
left her child with the paternal grandparents for three days when the
grandparents sought guardianship, which the mother unsuccessfully
contested.  (Id. at pp. 749-750.) 
The Third District Court of Appeal reasoned that, once the guardianship
was granted, the mother was no longer legally entitled to custody, and the
child’s custody status became a matter of judicial decree, not
abandonment.  (Id. at p. 756.)  The
court opined, “[Section 7822] contemplates that abandonment is established only
when there is a physical act—leaving the child for the prescribed period of
time—combined with an intent to abandon, which may be presumed from a lack of
communication or support.”  (>Id. at p. 754.)  The court concluded that the mother’s “conduct
following the granting of the guardianship—which included sending ‘stacks’ of
letters to the minor but failing to visit her—did not constitute ‘parental
nonaction’ amounting to a leaving.”  (>Id. at p. 756.)  The court, however, “[did] not discount the
possibility that, under different circumstances, it might be proper to conclude
that a parent has ‘left’ a child within the meaning of section 7822
despite court intervention .…”  (>Ibid.)

            Later,
in Marriage of Jill & Victor D.,
another panel of the Third District Court of Appeal explained its understanding
of the earlier case:  “[W]e do not read >Jacklyn F. as holding that evidence that
a parent has failed to communicate with his or her child for a year or has
failed to provide any support for the child during that time can never be circumstantial
evidence that the parent left the child and did so with the intent to abandon
the child.  Otherwise, it would be nearly
impossible to prove that a parent who does not communicate with or support his
or her child for a year has done what Jacklyn
F. characterized as the ‘physical act’ of leaving the child for the
statutory period.”  (Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 505.) 

            We
agree with Marriage of Jill & Victor
D.  Otherwise, one could never
establish that a parent who is initially separated from his child because of
incarceration has “left” the child despite years without any contact, support,
or effort to communicate.  (See also >Allison C., supra, 164 Cal.App.4th at pp. 1011-1012 [rejecting father’s
argument that, because restraining order and incarceration were involuntary, he
did not voluntarily allow mother to assume custody].)  Accordingly, we conclude that father’s
failure to communicate with Angelina for over five years while he was in prison
was properly considered evidence that he left her within the meaning of
section 7822. 

            Father
next argues that there was no substantial evidence that he intended to abandon
Angelina.  We disagree.  Section 7822 provides that “failure to
provide support[] or failure to communicate is presumptive evidence of the
intent to abandon.”  (§ 7822,
subd. (b).)  If a parent has “made
only token efforts to support or communicate with the child, the court may
declare the child abandoned .…”  (>Ibid.) 


            In
this case, father did not dispute that Angelina had no contact with him since
2007, and she received no communication from him until his mother delivered
some gifts and money to Angelina’s maternal uncle’s house in May 2013.  Father’s failure to communicate with Angelina
for almost six years was presumptive evidence of intent to abandon. 

            We
recognize that, when a parent is in prison, writing letters may be the only way
the parent can communicate with his child. 
(In re T.M.R. (1974) 41
Cal.App.3d 694, 698 [“Since [the mother] was incarcerated during the period
when she wrote to her children twice a month, it is obvious that she was
utilizing the only means of communication available to her.”].)  Here, however, the evidence showed that
Angelina received no letters from her father. 


            We
also recognize that a parent may make the effort to write to his child, but the
letters or other communication may not reach the child because of circumstances
outside the parent’s control.  (>Jacklyn F., supra, 114 Cal.App.4th at p. 752 [mother sent letters to her
child’s therapist; letters were given to guardian who did not show them to child].)  Father asserts that his testimony that he
wrote many letters to Angelina was “uncontradicted,” but we observe that he
contradicted himself.  He testified that
he first sent “a few letters” to his mother to give to Angelina in 2010, but he
later testified that he sent his mother letters for Angelina at least once a
month from 2007 until 2010.href="#_ftn4"
name="_ftnref4" title="">^[3]  His mother, Eva, testified
that she was in Mexico from 2008 until 2011, casting doubt on father’s claim that he sent
letters to her with the expectation that she would deliver the letters to his
daughter in California.  Eva testified that father
asked her to buy Angelina a gift at Christmas, but she did not confirm his
testimony that he wrote to Angelina every month.  In addition, as we have already noted, father
was also able to have gifts delivered to Angelina’s uncle’s house a few weeks
before the trial, a fact which appears to contradict his claim that he had no
way of getting his letters to Angelina. 

            The
trial court found that father failed to make a good faith effort to communicate
with Angelina, suggesting that it did not believe his testimony about the many
letters he wrote to Angelina and the efforts he made to have them
delivered.  Father’s argument that his
testimony was “uncontradicted” implies the trial court was somehow >required to accept his testimony as
true, but that obviously is not so.  (E.g.,
Marriage of Jill & Victor D., >supra, 185 Cal.App.4th at p. 506 [“Here,
the trial court was not required to believe father’s testimony regarding his
intent and, in light of the other evidence, father’s testimony did not overcome
the presumption of abandonment.”].)  Since
credibility determinations are the province of the trial court (>Allison C., supra, 164 Cal.App.4th at p. 1015, fn. 9), and it was
undisputed that Angelina did not receive any communication from father for
almost six years, there was sufficient evidence to support the trial court’s
finding that father did not make a good faith effort to communicate with
Angelina thereby raising the presumption of intent to abandon. 

DISPOSITION

            The
trial court order is affirmed.