In re Makayla P.
Filed 9/21/11 In re Makayla P. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
| In re MAKAYLA P., a Person Coming Under the Juvenile Court Law. | |
| STACI M. et al., Petitioners and Respondents, v. ANTHONY P., Objector and Appellant. | D059389 (Super. Ct. No. A57167) |
APPEAL from a judgment of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Reversed with directions.
Anthony P. appeals a judgment terminating his parental rights to his daughter, Makayla P., on the basis of abandonment. (Fam. Code, § 7822.)[1] He contends there was insufficient evidence to show he intended to abandon Makayla. He also asserts the court reversibly erred by not complying with the requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) and he received ineffective assistance of counsel. We hold substantial evidence supports the court's findings that Anthony abandoned Makayla within the meaning of section 7822. We reverse the judgment for the limited purpose of allowing compliance with ICWA. If after proper inquiry and notice, the juvenile court determines ICWA does not apply, it must reinstate its order terminating Anthony's parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2010, Makayla's mother, Staci M., and stepfather, Joshua M., petitioned to free Makayla from Anthony's custody and control. Joshua stated he wished to adopt Makayla. The petition alleged Anthony had not communicated with Makayla or made any provision for her support for more than one year.
The San Diego County Health and Human Services Agency social worker recommended Anthony's parental rights be terminated. The social worker reported Staci and Anthony began dating in October 2002, Stacy became pregnant in December, the couple married in January 2003, and Makayla was born in September. Staci and Anthony began having marital problems and separated in February 2004. Staci and Makayla then moved to the maternal grandparents' home, where Anthony sometimes visited Makayla.
Staci filed for divorce in January 2005, and the divorce was granted in April. According to their custody agreement, Staci and Anthony shared legal custody of Makayla, Staci was granted physical custody, and Anthony was provided supervised visitation and ordered to pay child support. Anthony said the divorce was painful and emotional for him, and, when Staci told him she was going to marry Joshua, he started having less contact with Makayla. Anthony last visited Makayla and made his last child support payment in February 2007. Staci and Joshua married in August 2007. Anthony reported his mother delivered a birthday gift from him to Makayla in September 2007, his last visit with Makayla was in the spring of 2008, and his last telephone call to her was in September 2008.
At a hearing on January 28, 2011, Staci testified Anthony agreed to pay $300 monthly child support, but he paid only about one and-one-half-months support and paid nothing between May 2005 and February 2007. She said he gave her $180 in February 2007, but after that time she received no support payments from him. Staci testified Anthony visited Makayla only about six times in 2005, six to 10 times in 2006, and he last saw Makayla in February 2007, when Staci told him that she was pregnant and she and Joshua were getting married.
Staci said Anthony sent her text messages on Makayla's birthdays in 2007, 2008 and 2009, telling her to wish Makayla a happy birthday, but he made no other attempt to communicate with Makayla. Staci said Anthony's mother gave Makayla a doll for her birthday in 2007, but there were no other gifts. She testified she had never changed her telephone number. When she moved with Joshua to Alpine, she did not give Anthony her address, he never asked for it and he never asked for visitation. Staci said Joshua had acted as a father to Makayla. Staci and Joshua both testified that Makayla called him "daddy." Joshua testified he had always provided for Makayla and he wanted to adopt her.
Anthony testified he had never intended to abandon Makayla. He said he signed the custody agreement because he wanted to make things work with Staci and to keep the family together. He testified that after Staci and Joshua moved to Alpine, Staci did not give him their address and he was not allowed to be there or know the address. He said he believed Staci and Joshua did not want him to spend time with their family, and Staci refused his requests for visits. He testified he usually paid $300 each month, but sometimes he did not have the money. He agreed his last payment was at his last visit with Makayla in 2007. Anthony said his employment had been unsteady during past years, but he thought he could now begin paying support and pay what he owed. He said he did not know he could lose his child by not seeing her. Anthony said he called Staci periodically and in 2006 probably called or texted her every couple of months. He testified he believed he had asked for visitation and a different visitation supervisor in 2007, but when Staci did not agree, he did not try to modify the agreement because he could not afford to hire a lawyer.
After considering the evidence and arguments by counsel, the court granted the petition and declared Makayla free from Anthony's custody and control. It found Anthony had not visited Makayla or paid child support for at least one year, he had demonstrated an intent to abandon her, and it would be in Makayla's best interests to terminate Anthony's parental rights so that Joshua could adopt her.
DISCUSSION
I
Anthony contends the evidence was insufficient to support the judgment declaring Makayla free from his custody and control. He argues the evidence did not show the elements of abandonment under section 7822, subdivision (a); he did not fail to pay support or have contact with her within the meaning of the statute and he never intended to abandon her.
Section 7822 provides in part:
"(a) A proceeding under this part may be brought . . . [¶] (1) [Where t]he child has been left . . . [¶] . . . [¶] (3) [By o]ne parent . . . 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.
"(b) 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 . . . ."
Section 7822 " 'shall be liberally construed to serve and protect the interests and welfare of the child.' " (In re Daniel M. (1993) 16 Cal.App.4th 878, 884.) Intent to abandon is a question of fact that may be found by objectively measuring the parent's conduct. (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) " ' " 'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.' " [Citations.]' " (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) "Case law consistently focuses on the voluntary nature of a parent's abandonment of the parental role rather than on physical desertion by the parent." (In re Amy A. (2005) 132 Cal.App.4th 63, 69.)
When the evidence shows only token efforts to communicate with the child, abandonment is presumed. In determining whether a parent intended to abandon his or her child, the juvenile court considers the frequency of the times the parent tried to communicate with the child, the genuineness of the effort under all the circumstances and the quality of the communications that occurred. (In re B. J. B., supra, 185 Cal.App.3d at p. 1212; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) To satisfy the terms of the statute, the Legislature meant an intent to abandon the child during the period of time specified in the statute, rather than an intent to abandon the child permanently. (In re Daniel M., supra, 16 Cal.App.4th at p. 883.) "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." (In re Cheryl E. (1984) 161 Cal.App.3d 587, 605.)
The juvenile court's finding of an intent to abandon must be supported by clear and convincing evidence. (§ 7821.) "However '[that] standard 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.' [Citation.]" (In re B. J. B., supra, 185 Cal.App.3d at p. 1211.) "All evidence most favorable to the respondents must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact." (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 931.)
Substantial evidence supports a finding within the meaning of the statute that Anthony voluntary left Makayla in Staci's care and custody with an intent to abandon her. Anthony did not communicate with Makayla for more than one year and he made only token efforts to keep in contact. After February 2007, when Staci told him she was marrying Joshua, he stopped visiting and paid no child support. Staci testified she did not give Anthony her new address when she moved to Alpine, and he never asked for it, but she never changed her cell phone number. Thus, Anthony had the ability to communicate with Staci and to ask to visit Makayla, but he never did. The text messages he left on Staci's cell phone on Makayla's birthdays in 2007, 2008 and 2009, telling Staci to wish Makayla a happy birthday, show only a token effort to communicate. Anthony's claim that he did not seek a modification of the visitation order because he could not afford to hire an attorney is unavailing. Neither he nor Staci was represented by counsel when they divorced. A counselor from Family Court Mediation Services had guided them in setting a custody and visitation agreement. Anthony could have sought mediation to change the visitation arrangement.
The court found not credible Anthony's testimony that he had requested visits and Staci had actively discouraged his attempts to stay in contact with Makayla. The court commented Anthony's primary reason for visiting Makayla appeared to be to stay in contact with Staci, and when he realized this was not going to be possible, he became less interested in visiting Makayla.
Anthony had agreed to pay $300 per month in child support, but he admitted "when the visits stopped . . . the child support stopped as well." Even taking into account his testimony that he had been unemployed and unable to make payments, not paying any support over such a long time indicates an intent to abandon. (In re Randi D. (1989) 209 Cal.App.3d 624, 630.) Moreover, Anthony never sought to modify his support obligation, but simply did not pay any support.
The presumption Anthony intended to abandon Makayla was established by his not communicating with her, his making only token attempts to contact her and his not providing any support for more than one year. The court's finding that he did not rebut this presumption is fully supported by the record.
II
Anthony contends the court did not comply with the requirements of ICWA by not inquiring whether Makayla had Indian heritage.
In a section 7822 proceeding, there is an affirmative and continuing duty to inquire whether the child may be an Indian child. Section 170, subdivision (c) defines an "Indian child custody proceeding" to include "a proceeding under this code . . . [that] involves a petition to declare an Indian child free from the custody or control of a parent . . . ." Section 177 applies the Welfare and Institutions Code section 224.3 duty to inquire whether a child may be an Indian child to Indian child custody proceedings. (§§ 170, subd. (c), & 177; Welf. & Inst. Code, § 224.3, subd. (a).)
ICWA inquiry and notice requirements apply in a section 7822 proceeding. (In re Suzanna L. (2002) 104 Cal.App.4th 223, 226-227.) The necessity for ICWA notice is implicated where there is information the child may have Indian heritage and therefore may be an Indian child, a matter for the ultimate decision of the tribe. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) "The showing required to trigger the statutory notice provisions is minimal; it is less than the showing needed to establish a child is an Indian child within the meaning of ICWA." (In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)
Here, there was no inquiry whether Makayla might be an Indian child. Under the facts of this case, where the respondents have conceded there was no inquiry regarding any potential Indian heritage, and that a limited reversal and remand may be necessary to allow full inquiry required by ICWA and any possible resultant requirement for ICWA notice, we remand for such an inquiry and for any required ICWA notice the inquiry might reveal. (In re J.N. (2006) 138 Cal.App.4th 450, 453, 461-462; In re Francisco W. (2006) 139 Cal.App.4th 695, 711.)
III
Anthony contends he received ineffective assistance of counsel in that his appointed attorneys did not mention the lack of an inquiry into Makayla's Indian heritage.
In light of our conclusion the judgment must be reversed based on the lack of an ICWA inquiry, we need not discuss Anthony's contention his counsel was ineffective for not raising the issue in the juvenile court.
DISPOSITION
The judgment is reversed. The case is remanded to the superior court with directions for a full inquiry as to whether Makayla might be an Indian child and for all ICWA notices that are necessary as a result of the inquiry. If, after proper inquiry and notice, no tribe seeks to intervene or otherwise indicates Makayla is an Indian child, the court shall reinstate the judgment. If, on the other hand, a tribe claims Makayla is an Indian child, the court shall proceed in conformity with all provisions of ICWA.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
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