In re C.M.
Filed 2/13/13
In re C.M. CA4/2
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CALIFORNIA
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In re C.M., a Minor. | |
D.Q., Petitioner and Respondent, v. E.M., Objector and Appellant. | E055834 (Super.Ct.No. RIA020527) OPINION |
APPEAL from
the Superior Court of
County. Kenneth J. Fernandez,
Temporary Judge. (Pursuant to Cal.
Const., art. VI, § 21.) Affirmed.
Konrad S.
Lee, under appointment by the Court of Appeal, for Objector and Appellant.
Haslam
& Perri, Donald G. Haslam and Shannon R. Thomas for Petitioner and
Respondent.
E.M.,
father, and M.Q., mother, had a three-year relationship, resulting in the birth
of C.M., the minor, in 2002. The
relationship ended in 2003, after father stole a safe from mother’s parents’
home and moved in with his male partner.
Family law orders awarded the parents joint legal custody and ordered
father to pay child support, but father never voluntarily paid support for his
child. Visitation became problematic
after mother married D.Q., the stepfather, and father was convicted of
the earlier theft of the safe from mother’s parents, resulting in his
incarceration. Upon his release in 2007,
mother opposed visitation without a monitor, obtained new family law orders
awarding her sole custody and requiring father to participate in certain
programs. For over a year, monitored
visits took place, but father never completed the court-ordered programs, and
visits stopped in 2009 due to father’s lack of funds to pay for the
monitor. After a year, and after father
sustained additional convictions, D.Q. filed a petition for a stepparent
adoption and to terminate father’s parental rights. The court found abandonment and terminated
the parental rights of father. Father
appealed.
On appeal,
father claims there is insufficient
evidence to support the finding that father left C.M. with intent to
abandon, or that he failed to provide support for the statutory period. We affirm.
BACKGROUND
Mother and
father met in 1994 when they were students, and began dating in 2000. They lived together in 2001, and mother
became pregnant with the minor. Father
was supportive and the couple planned to marry, but due to financial
difficulties, they moved in with mother’s parents. The minor was born in May 2002. Father was present for the birth and executed
a paternity declaration. In 2003, while
the family was still living with mother’s parents, father stole a safe from
mother’s parents’ home. Thus, father was
forced to leave and the relationship between mother and father failed. Mother and the minor remained with mother’s
parents. Father lived with his male
partner. In November 2003, an action to
establish a parental relationship (hereafter referred to as the paternity case
or the Family Law case) was filed.
In 2004,
mother’s parents moved to Temecula and mother and minor continued to reside
with them after the move. In April 2004,
the maternal grandmother sought and obtained a restraining order prohibiting
any contact by father. Initially,
between 2004 and 2005, visitation went well and father had significant contact
with the minor. However, in 2005, the
amount of visitation diminished. In
2005, orders were made in the paternity case awarding joint legal custody to
both mother and father, with primary physical custody to mother, and reasonable
visitation for father. The family law
court also ordered father to pay child support in the amount of $647 per
month. That order was never modified.
In 2006,
mother married D.Q., the stepfather of the minor, after mother gave birth to
another son, the minor’s half-sibling.
At some point, mother became concerned that father was “not a . . .
positive influence†for the minor because he was inconsistent with visits and
she became aware that father had exposed the minor to sexual activities between
himself and his male partner.
Additionally, mother was aware that there was an arrest warrant
outstanding for father, of which he was unaware, and she did not want to risk
father being arrested on the warrant while on a visit with the minor. Therefore, mother withheld visits. Mother also did not provide her address to
father. Father was arrested in
September, which also interfered with visits.
Father
filed an order to show cause (OSC) re modification of custody in March 2006, as
a result of the difficulty in exercising visitation with the minor for a
seven-week period. Also in March 2006,
father contacted Child Protective Services (CPS) claiming that the minor’s
stepfather had a drug problem. In
conducting the investigation, the CPS worker found nothing wrong with
stepfather, but the minor disclosed that he had witnessed father and father’s
boyfriend licking each other’s genitals.
When father
appeared in family court, he was arrested on a warrant for the burglary of
mother’s parent’s home. Mother, the only
witness to the burglary of her parents’ home, had reported the crime to
authorities in response to father’s order to show cause (OSC). Father was incarcerated between September
2006 and January 2007, and attempted to arrange visitation with the minor upon
his release. However, mother was afraid to
let father visit the minor because in the past father had threatened to kidnap
the minor.
Three
months later, father filed an OSC regarding the lack of visitation, resulting
in a referral for a court-ordered evaluation pursuant to Evidence Code section
730 (730 evaluation). On June 13, 2007,
while still awaiting the 730 evaluation, the court awarded mother physical
custody and ordered supervised visits for father. The court also ordered the parents to
participate in a psychological evaluation.
On September 12, 2007, further hearing took place in father’s absence
relating to the 730 evaluation. The
court ordered that the minor telephone his father every Monday, Wednesday, and
Friday at 7:30 p.m. Father gave the
minor cellular telephones, one in 2007, and a second number sometime after the
first telephone was lost, with which to call father.
Visits were
supervised by three successive supervisors.
The first supervisor monitored approximately 12 visits over a six-month
period. A second monitor supervised
between 10 and 12 visits between January 2008 and May or June of 2008. Visits went well and the minor was
comfortable with father, becoming emotional when it was time to return to
mother’s home on more than one occasion.
On May 21, 2008, this visitation supervisor attempted to contact mother
to set up a visit for Father’s Day, but mother never returned telephone calls,
so father never received a visit on Father’s Day that year.
On May 5,
2008, the 730 evaluation was completed and the hearing on father’s order to
show case was conducted, resulting in a subsequent modification of custody and
visitation in which mother was granted sole legal and physical custody of the
minor and father was granted supervised
visitation. Father did not appear at
the hearing. The order, which adopted most
of the recommendations contained in the 730 evaluation, further required father
to participate in a 16-week parenting training, with no overnight visits until
he completed the training. The order
also adopted a recommendation that father participate in psychotherapy, and
that both parents complete sections A, B, and C of the coparenting program at
Solutions for Families. The coparenting
program was never completed because father never completed his parenting classes.
On December
22, 2008, father filed another OSC relating to modification of custody and
visitation, but it was continued for lack of service, and eventually taken off
calendar on July 22, 2009, when father did not appear on two separate hearing
dates, although he called in on May 12, 2009, to explain he was ill. Father was hospitalized in December 2009, and
again in February 2010, for health issues related to his diagnosis of anemia.
Mother
opened a case with Child Support Services to collect child support, but she
only received two payments, obtained by intercepting father’s tax refunds, once
in 2008, and the second one in 2009.
After the second tax intercept, mother closed the child support
collection file in anticipation of and to facilitate the stepparent
adoption. When father received notice of
the closing of the child support case, he contacted the agency to determine if
he still had an obligation to pay, and was told he was not obligated unless
mother took action.
Father’s
last in-person visit with the minor occurred on the minor’s birthday, in May
2009. His last telephone contact with
the minor was on the minor’s birthday in 2010.
Father paid no child support after the second tax intercept in 2009. When the petition to free the minor from
father’s custody and control was filed, father was incarcerated on new criminal
charges. He has four felony
convictions: first degree burglary
committed in 2006 (Pen. Code, §§ 459, 460), possession of controlled substance,
cocaine (Health & Saf. Code, § 11350, subd. (a)), second degree burglary
(Pen. Code, § 459), and grand theft.
(Pen. Code, § 487, subd. (a).)
His earliest possible release date was in April 2012.
On October
28, 2010, stepfather, D.Q., filed a petition to free the minor from the custody
and control of his father to facilitate a stepparent adoption on the ground of
abandonment. (Fam. Code, § 7822.) The petition was amended to include an
allegation that father had been convicted of a felony, the facts of which
proved unfitness. (Fam. Code, §
7825.) The probation report included
input from the minor who expressed a desire to be adopted.
Following a
bench trial, the court dismissed the ground relating to father’s felony
conviction. However, the court found by
clear and convincing evidence that (1) the minor had been left by father with
the mother, (2) without communication or support from father for the period
between September 22, 2009, and June 23, 2011,
that occurred between father and the minor between September 22, 2009, and June
23, 2011 was token communication.
Therefore, the court granted the stepfather’s petition for freedom from
parental custody and control. Father
appealed.
DISCUSSION
Father
argues there is insufficient evidence to support the judgment terminating his
parental rights. Specifically, he argues
there is insufficient evidence that he “left†the minor with his mother with
the intent to abandon. He also asserts
his failure to support the minor did not manifest an intent to abandon because
he was indigent and because mother terminated the child support enforcement
proceeding, did not demand support.
Finally, father argues that termination of parental rights was not in
the minor’s best interests. We disagree.
a. Standard of Review
We
apply the substantial evidence standard of
review. (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491,
503.) Applying this standard, we do not
pass on the credibility of witnesses, resolve conflicts in the evidence, or
reweigh the evidence. (
All conflicts in the evidence must be resolved in favor of the
respondent and all legitimate and reasonable inferences must be indulged in to
uphold the judgment.
name="_ftnref2" title="">[2] (
Cal.App.4th 1004, 1010-1011.)
Abandonment
and intent are questions of fact for the trial judge and his decision, when
supported by substantial evidence, is binding upon the reviewing court. (Adoption
of Allison C., supra, 164 Cal.App.4th at p. 1011, citing
533, 549.) We simply determine whether
there is substantial evidence, believed by the trial court, to support the
court’s findings. (In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at
p. 503.) The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature to support
the court’s finding or order. (
Cal.App.4th at p. 1011.)
b. Sufficiency of
Evidence that Father “Left†the Minor without Communication or Support.
In
relevant part, Family Code section 7822 provides that a proceeding to terminate
parental rights may be brought if one 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
to abandon the child. (Fam. Code, §
7822, subd. (a)(3).) The failure to
provide identification, failure to support, or failure to communicate is presumptive
evidence of the intent to abandon. (Fam.
Code, § 7822, subd. (b).) If the
parent has made only token efforts to support or communicate with the child,
the court may declare the child abandoned by the parent. (§ 7822, subd. (b).)
In
determining whether a parent has “left†his or her child, the focus of the law
is on the voluntary nature of the parent’s abandonment of the parental role
rather than on physical desertion. (
supra, 185 Cal.App.4th at p. 504, citing In re Amy A. (2005) 132 Cal.App.4th 63, 68.) Although a parent may not be found to have
voluntarily left a child in the care and custody of another where the child has
been “taken†from the parent by a court order, the parent’s later voluntary
inaction may constitute a leaving with intent to abandon. (In re
Cattalini (1946) 72 Cal.App.2d 662, 665.)
Thus,
there are numerous decisions holding that the “leaving†element may be
established by evidence of a parent’s voluntary inaction after an order granting
primary care and custody of the child to the other parent. (In re
Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 505;
p. 70; In re Jacqueline H. (1979) 94
Cal.App.3d 808, 815-816; In re Cornrich (1963)
221 Cal.App.2d 662, 666-667.)
Evidence
of a parent’s failure to communicate with or support the child for the
statutory period can satisfy the statutory requirement that the child be “leftâ€
for the prescribed period. (
supra, 185 Cal.App.4th at p. 505.) A
parent’s failure to provide support or failure to communicate with the child
for a period of one year or more is presumptive
evidence of intent to abandon and if the parent has made only token efforts
to support or communicate with the child, the court may declare the child
abandoned by the parent. (
p. 68.) A parent’s incarceration does
not, in and of itself, provide a legal defense to abandonment. (Adoption
of Allison C., supra, 164 Cal.App.4th at p. 1012; see also
424.)
Regarding
the presumption of intent to abandon accruing from a parent’s failure to
support, father’s ability to support was limited due to his incarceration
during a portion of the statutory period (from September 2010 to October 2010,
when the petition was filed), but incarceration is not an acceptable excuse for
nonsupport because the incarceration is the result of the parent’s own
volitional and wrongful actions. (See
Cal.App.4th at p. 1012.)
It
is true that failure to support in the absence of a demand does not necessarily
prove the intent to abandon. (
146, 159.) It is also true that evidence
of a parent’s inability to pay support rebuts the presumption of
abandonment. (Adoption of Allison C., supra, 164 Cal.App.4th at p. 1013.) However, where the failure to support is
coupled with a failure to communicate, the court may apply the presumption of
intent to abandon. (Adoption of Allison C., at p. 1013, citing In re Randi D. (1989) 209 Cal.App.3d 624, 630.)
Here,
father had the opportunity to seek enforcement of visitation orders in
proceedings that he initiated in 2009, and all through 2010, prior to his most
recent incarceration. However, he took
no action after his failures to appear in court on his own OSC in 2009 to
enforce visitation. Although father
testified that he did not know the residence address of mother and stepfather,
and complained that mother did not answer or return his telephone calls, mother
had been represented by the same attorney throughout the child custody
proceedings and he made no attempt to locate or serve mother through counsel.
family court orders required that mother keep him apprised of her address (and
vice versa), so he could have sought enforcement of that order, as well.
Further,
he did not follow through with the court orders of May 5, 2008, to complete
psychotherapy and parenting education, as a predicate to the co-parenting
program, which, as the trial court noted, would have allowed for more
liberalized visitation. Thus, the court
correctly found that during the statutory one-year period he did not visit and
did nothing to enforce his visitation rights, although he was knowledgeable of
the means to do so.
The
court found father’s communication efforts to be token. We agree.
After the petition for termination of parental rights was filed, father
sent letters to the minor at mother’s current address. After father’s most recent incarceration, he
claimed to have sent letters to his son, but mother denied receipt of any
correspondence until the petition was filed.
Father’s incarceration commenced the month before the petition was
filed, since he was arrested in September 2010.
This was too little, too late.
Given the conflicting “he said, she said†nature of the evidence, we are
bound by the trial court’s determination.
Regarding
father’s failure to support, we disagree with the notion that mother made no
request for support: she requested it in
the course of the child custody proceedings and obtained a child support order
in the amount of $647 per month.
She later instituted a child support collection action with Child
Support Services. The testimony is
unrefuted that during the statutory period preceding the petition to terminate
his parental rights, father paid no support.
It is true mother could have enforced the child support order in family
law proceedings and made verbal demands, but the father’s duty to support
pursuant to a valid support order did not evaporate just because mother did not
seek formal redress for failure to pay.
(County of Orange v. Smith (2002)
96 Cal.App.4th 955, 962 [child’s right to support cannot be abridged by his or
her parents; waiver of child support is void].)
Further,
father’s incarceration does not excuse his failure to support. He was incarcerated on his current commitment
beginning in September 2010, but the statutory period for the termination of
parental rights began to run in October 2009, eleven months earlier. Father was out of custody for most of that
time. Father asserted he was unable to
pay prior to his arrest because he was ill and not gainfully employed during
that period. However, he had financial
assistance from his parents who would have paid child support on his behalf if
father had requested, but he did not. He
also could have sought a modification of the child support order based on his
inability to pay.
Additionally,
even when father was gainfully employed, he contributed, involuntarily, only
two payments of $647 each, over a period of five years from the date of the
support order. We have no reason to
believe that father would have voluntarily paid child support even if he were
healthy and employed. Finally, even if
we were to agree with father’s argument that he did not have the ability to pay
support during the statutory period, Family Code section 7822 does not require proof
of both lack of communication and
failure to support. Because the
disjunctive “or†is used in the statute, evidence of either a parent’s failure to support his child or his failure to communicate with the child is sufficient to
support a finding of abandonment.
There is
substantial evidence to support the trial court’s findings that father left the
minor with his mother and stepfather with the intent to abandon. The fact that there was conflicting testimony
does not compel a reversal of the judgment.
c. Sufficiency of
Evidence that Termination of Parental Rights Was in the Minor’s Best Interests.
Father
argues that termination of his parental rights was not in the minor’s best
interests. We disagree.
We
agree that in any proceeding where there is at issue the custody of a minor
child, the court must consider the minor’s best interests. Indeed, Family Code section 7800 expressly
provides that the statutory intent is to serve the child’s best interest by
providing the stability and security of an adoptive home where those conditions
are otherwise lacking. (See
152, 162-163.)
Here,
the termination of father’s parental rights was in the best interest of the
minor because father had abandoned the minor, as determined by the trial court,
by failing to communicate or support the minor for the statutory period, and
because the proposed stepparent adoption presented stability and security for
the minor. The fact that the minor had a
loving relationship with his father in the past does not amount to detriment
which might preclude a judgment terminating parental rights.
Father’s
lack of support and inconsistent contact, coupled with his criminal
convictions, which caused him to be absent from his child’s life, demonstrate
that adoption would promote the security and stability the Legislature
envisioned for children. Childhood is
brief and a child’s need for a permanent and stable home cannot wait for a
parent to rehabilitate himself or herself.
(Adoption of Allison C., supra,
164 Cal.App.4th at p. 1016.) Adoption is
in the child’s best interests.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
McKINSTER
J.
MILLER
J.
first petition was filed in October 2010, but was amended twice; the second
amended petition was filed on June 23, 2011.
Respondent urges us to deem father’s arguments as forfeited because he
failed to include all the material evidence favorable to the judgment. Father’s brief is on the cusp of ignoring
unfavorable evidence on which the trial court based its decision. However, because of the importance of the
issues and interests at stake for both the father and the minor, we exercise
our discretion to reach the issue on the merits. (Toigo
v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [court addressed evidence
supporting the judgment although summary disposition was proper].)
