In re Chase S.

Filed 2/3/10 In re Chase S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed.

Barbara T. appeals a judgment terminating her parental rights to her minor son Chase S. on the basis of abandonment under Family Code section 7822.[1] Barbara contends she did not "leave" Chase in the care and custody of another person with the intent to abandon him, but instead, Chase's father Fred S. prevented her from having any contact with her son. Barbara further contends the court erred by considering Chase's best interests in making its abandonment findings. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Fred and Barbara met and started dating in the fall of 2002 and married later that same year. In February 2003 Barbara was arrested, incarcerated and later sentenced to prison. Barbara learned she was pregnant while serving her sentence and she informed Fred that she was expecting a baby. Chase was born in August 2003. Fred was not present at Chase's birth because Barbara was incarcerated. Fred's name appears on Chase's birth certificate. Fred did not pick up Chase after his birth because he did not know if Chase was his child; instead, he requested a paternity test. Chase went to live with a maternal relative until Barbara's release from custody in October 2003. Upon her release, Barbara transferred to the California Prisoner Mother Program, and Chase went to live with her. Fred did not have contact with Chase during this time.

Fred divorced Barbara in July 2004. Around the same time, Fred participated in a paternity test and the test determined that he is Chase's father. Fred filed for custody of Chase. Fred's request for custody was denied but he was granted visitation. Fred started to visit Chase and consistently provided him child support as of September 2004. Barbara was released from her program and placed on parole. Fred married Patrice in August 2005.

In August 2006 Barbara was arrested for driving under the influence (DUI) and incarcerated. Chase was visiting Fred at the time of Barbara's arrest. The San Diego County Health and Human Service Agency (Agency) was conducting an investigation of Barbara around the time of her arrest regarding allegations that she had neglected Chase. After learning that Chase was likely to be removed from Barbara's custody, Fred sought custody of Chase.

Barbara attended a family court hearing in August 2006 scheduled to address Fred's request for custody of Chase. Barbara requested a continuance of the hearing because she wanted additional time to retain an attorney. The court continued the hearing until September 12, 2006. Barbara did not appear at the September 12, 2006 hearing. The court granted Fred custody of Chase and ordered that there be no contact between Chase and Barbara.

Barbara last saw Chase before her DUI arrest. She claimed she called Chase many times between September and October 2006 but that Fred did not allow her to talk to Chase. In December 2006 Barbara sent the maternal grandmother to Fred's house to give Chase a Christmas gift and card. This was the last gift and card Chase received from Barbara.

In November 2006 Barbara was arrested for drug possession and sentenced to an 18-month drug treatment program. She entered the program in August 2007. Barbara claimed she sent gifts, cards and letters to Chase in 2007. She further claimed she attempted to call Chase numerous times but was unsuccessful. Barbara represented she tried to fight Fred's custody order but she was frustrated and confused by the process. She admitted using drugs again as of the spring of 2007.

In July 2007 Barbara and her friend went to Fred and Patrice's home in an attempt to see Chase. Patrice called the police because Barbara and her friend were screaming, yelling and banging on the windows. The police arrested Barbara on an existing warrant.

In August 2007 Patrice filed a petition to declare Chase free from parental custody and control and terminate Barbara's parental rights, freeing Chase for adoption by Patrice. Patrice was unable to personally serve Barbara and filed an application to serve the petition by publication. The court granted Patrice's application in August 2007 and the petition was published in a local newspaper.

Social worker Tina Jako filed an assessment report and recommended that Chase be declared free from the custody and control of Barbara. Jako based her recommendation on her findings that Barbara had not seen Chase since August 2006 nor had Barbara filed any motions to change the custody and no contact orders set in place by the family court. Barbara had not provided financial support during the statutory

one-year period of time and had sent one "token" gift to Chase in December 2006.

In November 2007 the court granted the petition and ordered Chase free from Barbara's custody and control and terminated Barbara's parental rights. Barbara was not present at the hearing.

In July 2008 Barbara sought to reinstate visits with Chase and learned that her parental rights had been terminated.[2] In October 2008 Barbara filed a motion to vacate the judgment declaring Chase free from her custody and control. She also filed a motion seeking to vacate the stepparent adoption. In February 2009 the trial court granted Barbara's motions, finding that Patrice had not properly served the petition for freedom from parental custody and control on Barbara's relatives under section 7881, subdivision (a). The trial court vacated the November 2007 judgment and scheduled a new trial to address Patrice's original petition filed in August 2007. The court ordered social worker Jako to prepare an updated report.

In her February 2009 assessment report, Jako recommended that Chase be declared free from the custody and control of Barbara. Barbara had not seen Chase since August 2006 and had done nothing to change the September 12, 2006 no contact order. Barbara had not provided financial support for Chase, and her last gift to him was sent in December 2006. Jako believed that Barbara's complete lack of contact and lack of support for Chase provided presumptive evidence of Barbara's intent to abandon her son. Jako opined that adoption was in Chase's best interests.

From April 2009 through June 2009, the court held a trial to address Patrice's petition. The court received in evidence Jako's reports and heard the testimony from witnesses that included Patrice, Barbara, Jako and Chase's maternal grandmother.

Jako testified that she spoke with Barbara concerning her efforts to return to court to address the no contact order during the time period of fall 2006 through spring 2007. Barbara did not state exactly when she discovered the no contact order was in place. She claimed she made attempts to go back to court to address the no contact order but she was very overwhelmed with the court process. In addition, Barbara relapsed on methamphetamine during that time. Barbara did not provide Jako with any evidence showing Barbara went to court between fall 2006 and spring 2007. Jako further testified that Barbara acknowledged she did not provide financial support for Chase during the statutory period.

Jako noted Barbara claimed she sent gifts to Chase every holiday. However, Barbara did not provide any evidence of sending anything to Chase. Fred and Patrice reported that Barbara did send a Christmas gift to Chase in December 2006. Fred and Patrice also reported that Barbara came to the family home in July 2007 but Barbara did not visit the house at any other time.

Jako interviewed Chase but she did not ask him any questions about Barbara. She believed that Chase saw Fred and Patrice as his parents and noted that Chase called Patrice "mommy."

Barbara testified she made numerous attempts in 2006 and 2007 to file "paperwork" with the family court but was unsuccessful and never filed anything.[3] She asserted she attempted to serve Fred with papers to change the no contact order but he did not answer the door. Barbara further testified that in 2006 and 2007 she was trying to get her life in order. She had been arrested for drug possession in November 2006, and in mid-2007 she entered into a drug program.

Barbara claimed she tried to visit Chase many times between September 2006 and December 2007, but Fred did not allow her to see Chase. She made phone calls and stated that she could not reach Fred at home because he regularly changed his telephone number. Barbara also testified that she bought gifts for Chase and left him telephone messages.

Patrice testified that she married Fred in August 2005. She reported that Barbara did not contact her, Fred or Chase after October 2006. Patrice stated that the family home phone number has remained the same since 2005.

Chase's maternal grandmother testified that she went to see Chase in December 2006. The maternal grandmother did not talk to Fred again after December 2006. She testified that she had tried to call Fred since then, but no one would answer the telephone. She further stated that Barbara made numerous attempts to call Chase and that she would leave messages for Chase telling him she loved him.

The court found, by clear and convincing evidence, that there was a presumption of abandonment in that Barbara left Chase in the custody of Patrice and Fred. The court stated that it did not find Barbara's testimony to be credible and her account of what had happened changed numerous times. The court found Patrice's testimony to be credible. Finding adoption was in Chase's best interests, the court granted Patrice's petition to terminate Barbara's parental rights.

DISCUSSION[4]

I. ABANDONMENT OF A MINOR

Barbara challenges the sufficiency of the evidence to support the court's finding she abandoned Chase within the meaning of section 7822. Barbara asserts she did not "leave" Chase with Fred; rather, her lack of communication with Chase was the result of Fred obtaining custody of Chase and a no contact order between Chase and Barbara. She also maintains there was insufficient evidence that she intended to abandon Chase.

A. Leaving the Minor ( 7822)

A proceeding to have a child declared free from the custody and control of a parent may be brought under section 7822 where the child has been left by one 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." ( 7822, subd. (a).) 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 the intent to abandon. 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).) Abandonment is a factual question which we review for substantial evidence. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211; In re Amy A. (2005) 132 Cal.App.4th 63, 67.)

"The fact that a parent has not communicated with a child . . . or that the parent intended to abandon the child does not become material . . . unless the parent has 'left' the child" within the meaning of section 7822. (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) A parent "leaves" a child by voluntarily surrendering the child to another person's care and custody. (In re Amy A., supra, 132 Cal.App.4th at p. 70 [existence of a judicial order placing custody of child with one parent does not preclude a finding the other parent "left" the child within the meaning of 7822]; In re George G. (1977) 68 Cal.App.3d 146, 160.) Conversely, "abandonment does not occur when the child is taken from parental custody against the parent's wishes." (In re George G., supra, at p. 160.)

Here, the evidence shows Barbara's absence from Chase's life was not precipitated by judicial action. (Compare In re Jacklyn F., supra, 114 Cal.App.4th at p. 756 [child's grandparents obtained legal guardianship of child against mother's wishes; mother repeatedly sought custody of child and opposed every legal action by grandparents that limited her contact with child].) Barbara left Chase with Fred for a weekend visit in August 2006; while Chase was in Fred's care, she was arrested on drug-related charges. Fred then sought to obtain custody of Chase. Although Barbara had notice of the court proceedings at which Fred obtained custody of Chase and a no contact order, she failed to attend the hearing or oppose the issuance of the order. Barbara admitted to the social worker and she testified at trial that she did not file legal documents in court attempting to change the custody orders. Barbara's inaction transformed any judicial action into parental abandonment. (In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816; In re Jack H. (1980) 106 Cal.App.3d 257, 264.)

We acknowledge that Barbara sent Chase a Christmas present in December 2006, and attempted to see him in July 2007, at which time she was arrested. Aside from those instances, there is no evidence showing Barbara sent additional cards, letters or gifts and the court did not credit her contrary testimony. Further, Barbara admitted she did not provide any form of child support during the statutory year.

Barbara argues that she had difficulty understanding the trial process and was not able to file challenges to the court's no contact order. She claims she attempted to serve Fred with papers and that she called Fred, but he had changed his home phone number. She further claims Fred prevented her from having contact with Chase. Patrice testified, however, that Barbara did not contact Chase or leave messages for him during the statutory period. Patrice also maintained that Barbara did not serve her or Fred with any court documents and testified the home phone number was not changed as Barbara claimed. Barbara's attempts to have this court reweigh the conflicting evidence ignore the most fundamental precept of the relationship between the trial and appellate courts: the trier of fact resolves issues of credibility. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 749, fn. 6.) After considering all the evidence and observing the demeanor of the witnesses, the court was in the best position to ascertain the truth between Barbara's claims of attempted contact with Chase and Patrice's testimony. Given the absence of evidence provided by Barbara to show she had attempted to communicate with Chase coupled with Barbara's lack of credibility as a witness and her changing accounts of what occurred, the court was entitled to resolve the conflicting versions and find Barbara's testimony lacked credibility. Substantial evidence supports the court's finding Barbara "left" Chase within the meaning of section 7822.

B. Intent to Abandon ( 7822)

Having found Barbara left Chase in Patrice and Fred's care, the court was also required to find Barbara intended to abandon Chase during the one-year statutory period before the petition was filed. (See In re Daniel M. (1993) 16 Cal.App.4th 878, 885.) Intent to abandon is a factual question that may be resolved by objectively measuring the parent's conduct. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) The 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. (Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) As we previously noted, a parent's failure to communicate with his or her child for a period of one year is "presumptive evidence of the intent to abandon." ( 7822, subd. (b).) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A., supra, 132 Cal.App.4th at p. 68.) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (In re B.J.B., supra, at p. 1212.)

The evidence showed that at the time the petition was filed Barbara had not communicated with Chase for more than a year. Barbara argues she communicated with Chase indirectly through gifts sent by her and delivered by Chase's maternal grandmother. Barbara further claims she called and left voice messages for Chase. The record shows Barbara gave the maternal grandmother a gift to give to Chase in December 2006 and that Chase received the gift. In July 2007 Barbara came to Chase's home but was arrested. Outside these "token efforts," however, no additional evidence showed that Barbara saw Chase, sent cards or gifts or made phone calls. Patrice instead testified that Barbara never communicated with Chase outside of the December 2006 gift.

Further, nothing in the record indicates Barbara would have been prevented from changing the court's no contact order and there is no evidence that Patrice prevented Barbara from sending gifts to Chase. Rather, Patrice allowed Barbara to give a gift to Chase in December 2006. Barbara knew where Fred and Patrice lived. She had their home telephone number which remained unchanged. "[T]he reality is that parents sincerely interested in maintaining contact, whether by telephone, card or personal visit, with their children, or with the persons responsible for their care, will do so under ordinary circumstances in any [one-year] period." (In re Rose G. (1976) 57 Cal.App.3d 406, 420.) Substantial evidence supports a finding Barbara intended to abandon Chase within the meaning of section 7822.

II. BEST INTERESTS OF THE MINOR

Barbara contends that the court erred by considering evidence pertaining to her parental fitness and Chase's best interests in deciding the abandonment issue. Specifically, she claims the court improperly heard evidence pertaining to her criminal history and drug use.

The record does not confirm this contention. Contrary to Barbara's assertions, the record shows the court did not make findings concerning Barbara's parental fitness or Chase's best interests before holding a trial and deciding the abandonment issue. Further, we do not find the court erred by commenting that it was in Chase's best interests to terminate Barbara's parental rights so that Chase could be free for adoption by his stepmother. A child's best interests are not irrelevant. The purpose of the proceedings to have minor children declared free from the custody and control of their parents "is to serve the welfare and best interest[s] of a child by providing the stability and security of an adoptive home when those conditions are otherwise missing from the child's life."

( 7800; see also Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162 ["intended foremost to protect the child"].) The statutes providing for such proceedings "shall be liberally construed to serve and protect the interests and welfare of the child." ( 7801.)

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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[1] Statutory references are to the Family Code.

[2] There is no indication in the record of Barbara contacting Chase between November 2007 and July 2008.

[3] The record shows Barbara filed an "Ex Parte Application" with the court in January 2007, claiming Fred was serving time in prison. Barbara did not address the custody order or no contact order in the ex parte application. The trial court set the issue raised by Barbara for a hearing and ordered that Fred be served. However, Barbara did not serve Fred or Patrice with the ex parte application and the trial court did not hold a hearing to address the ex parte application.

[4] Patrice argues that the court lacked subject matter jurisdiction to vacate the November 2007 order declaring Chase free from the custody and control of Barbara. First, Patrice's argument is not timely. The court's February 2009 order vacating the November 2007 order was an appealable order that was not timely appealed. (See Code Civ. Proc., 906.) Patrice did not file a notice of appeal following the February 2009 hearing. We acknowledge that minor's counsel filed a notice of appeal but later dismissed the appeal. Second, the trial court had authority to vacate the November 2007 order because Barbara did not receive proper notice of the hearing held to address Patrice's petition to terminate Barbara's parental rights. (See 7881, 7882.) Moreover, in light of the disposition in this case, the argument is now moot. (See In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.)