T.W. v. T.P.
Filed 5/15/13 T.W. v. T.P. CA1/5
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FIVE
and Respondent,
and Appellant.
A134575
(
Super.
This
case is before us for the second time.
(See T.P. v. T.W. (2011) 191
Cal.App.4th 1428.) In this appeal, T.P. (Father)
challenges a judgment freeing his daughter (Minor) from his
brought by respondent T.W. (Mother) seeking a finding that Father had abandoned
Minor within the meaning of Family Code section 7822.
existence of all of the elements of section 7822 abandonment by
Father
asks us to reverse the judgment for two reasons. He first claims the trial court’s failure to
consider appointing independent counsel for Minor makes the judgment voidable
as in excess of the trial court’s jurisdiction.
He also contends the court’s finding that he intended to abandon Minor
is unsupported by substantial evidence. We find neither contention persuasive and
therefore affirm.
Factual and
Procedural Background
Mother
and Father were introduced in 1998. They
began dating and continued to do so until August of that year, when Mother left
to study nursing in Washington, D.C. After that, they dated sporadically, seeing
each other on holidays and school breaks.
At
some point thereafter, Mother and Father began living together in Sacramento. Mother became pregnant and gave birth to
Minor in June 2003. Mother and Father
were no longer living together by that time, having separated earlier in that
year. Mother testified they broke up
because Father “wasn’t working and wasn’t really making an effort to find
employment to help with the finances at home.â€
Mother remained in Sacramento
until she gave birth to Minor, at which time she moved to her parents’ home in Antioch,
where she lived until January 2006.
Since
Minor’s birth in June 2003, Mother has had sole custody of Minor and has
provided for all of Minor’s financial, emotional, educational, and health
needs. Father has not provided any such
support since Minor was born.
During
the period in which Mother lived with her parents, from approximately July 2003
until January 2006, Father visited Minor only once. The visit occurred in August 2003, when Minor
was two months old. The visit was brief
because Mother and Father began arguing after Mother asked Father if he had
brought anything for Minor, such as diapers or money. Mother never sought a formal order of
support, and this was the only time Mother asked Father for support for Minor. Father did not visit Mother at her parents
home after August 2003, although he knew where Mother’s parents lived; in
addition to the August 2003 visit, he had been to the house many times while he
and Mother were dating.
Mother
moved out of her parents’ house in January 2006, and then moved again before
buying the home in which she currently lives.
Mother resided in Antioch at all times, however, and at all times her
telephone number and addresses were listed in the telephone directory.
of these residences, and Mother received no mail from him. Father did not send Minor birthday or
Christmas cards. Indeed, Mother has
never received any type of written communication from Father concerning Minor. Between August 2003 and October 2009, Mother
received no telephone calls, messages, or voicemail from Father, and she was
unaware of any communications between Father and Minor during this period. After June 2003, Mother’s parents received no
communications from Father, either.
Mother did happen to see Father four or five times in the
Antioch-Pittsburgh area where they both lived, but during these chance
encounters, Father did not inquire about Minor.
Mother
never refused to give Father either her home address or telephone number, and
Father never asked her for her address.
Although Mother was listed in the telephone directory, Father never
looked in the directory or called 411 to find Mother’s number. At trial, Father claimed he did not have a telephone
book and did not call 411 because he thought it could be used only to find
businesses and not people. Before 2008,
Father did not use any computer searches in an attempt to find Mother and
Minor. Father testified that in 2008, he
performed a computer search and found Mother’s telephone number.
In
October 2009, while employed at Comcast, Father called Mother’s unlisted cell
phone number from a Comcast phone. He
admitted to Mother he had obtained her cell phone number by looking at her
Comcast file and informed her he had her address. Mother told Father it was unacceptable for
him to access her file without a reason, and she explained she would be
complaining to Comcast about his conduct.
She did so, and Comcast terminated Father on October 31, 2009,
because he had looked at computer files for personal reasons.
On
November 6, 2009, less than one week after his termination, Father filed a
petition to establish parentage over Minor.
Although Father acknowledged he was angry at Mother over his
termination, he claimed at trial that he did not file the petition because he
was angry, but rather because someone in Comcast’s human resources department
had advised him to do so. In response to
Father’s petition, Mother filed a petition seeking to terminate Father’s
parental rights.
title="">[3]
The
superior court granted Father’s petition to establish parentage on
January 26, 2010. At the same time,
it denied Mother’s petition to terminate Father’s parental rights. As we explained in our prior opinion in this
case, the superior court ruled Mother had no standing to seek termination of
Father’s parental rights. (
pp. 1431-1432.) Mother appealed
from the resulting judgment, and in the prior appeal, we reversed the trial
court and concluded Mother did have standing to petition for termination of Father’s
parental rights. (Id. at pp. 1430, 1434-1439, 1440.) We therefore remanded the case for further
proceedings on Mother’s petition. (
After
remand, the trial court referred the matter to a court investigator. (See § 7850.) The investigator conducted interviews with
Mother, Father, and Minor. Minor was
interviewed on July 11, 2011. After
the investigator told Minor, who was eight years old at the time, “she had two
dads,†Minor replied, “‘I don’t think I have another dad. I’ve never seen him. I only have this dad that is in my
house.’†Minor said she did not want to
meet or visit with Father and expressed a desire to live with her mother. She told the investigator she was happy with
her family and couldn’t wait for her two parents to get married, which they did
in August 2011. The investigator
explained to Minor that Mother was seeking to prevent Father from being able to
visit her and asked Minor what she thought of that. Minor responded, “‘Well, I don’t really have
another dad,’†and “said it was okay with her if the court ended [Father’s]
rights to visit her.â€
In
summarizing his findings, the investigator stated Father did not pay child
support or otherwise provide support for Minor, although no support was ever
ordered and Mother had made no demands for support. The investigator noted that Mother had told
him Father had visited Minor only once since Minor was two months old and that
all subsequent contact had been the result of “random encounters around
Antioch.†Father, on the other hand,
claimed to have visited with Minor three or four times a year. While acknowledging the facts of the case
were disputed, the investigator presumed Father was telling the truth about his
visits with Minor, but nevertheless concluded that Father’s “communications
with [Minor] appear[ed] to be only token communications.†The investigator observed that Father knew
Mother and Minor’s address when the latter were living with Mother’s parents,
but during this period, Father took no steps either to establish parentage or
regular visitation with his daughter.
Despite Father’s claim that he did not know Mother’s address or
telephone number, the investigator found this information was “readily accessible.â€
The
investigator concluded that Father “does not appear to have had any meaningful
contact with [Minor] for a third of her life and appears to have abandoned her
for the statutory period.†Since the
only father Minor had known was Eric E., the investigator stated, “It does not
appear to be in [Minor’s] best interest to put her through a therapeutic
reunification under these circumstances.â€
The report therefore recommended that Mother’s petition be granted.
The
matter was tried to the court on November 2, 2011. The record does not reflect that the trial
court considered whether it should exercise its discretion to appoint
independent counsel for Minor. (See
§ 7861.) It does not appear that
either party brought the issue to the court’s attention.
Mother
and Father both testified at the trial, and there was brief testimony by
Mother’s father, John W. After the close
of the evidence, the court ruled orally from the bench. The court found there was “zero evidenceâ€
Father was financially unable to support Minor, and it further found that the
“minimal efforts†Father made to visit Minor between 2003 and 2009 showed an
intent to abandon. It found Father had
Mother’s phone number and that he could have done a computer search to locate
her as early as 2004.
name="_ftnref4" title="">[4] The court ruled that Mother had established
all of the elements required under section 7822, and it therefore granted
her petition. It also declared Minor
free for adoption.
On
February 6, 2012, the court filed its written factual findings and
judgment. It found Mother had established
by clear and convincing evidence that Father “voluntarily left the child in
[Mother’s] care and custody for a period of one year without any provision for
the child’s support with the intent to abandon the child.†It also found there was no evidence Father
was unable to support Minor and that Mother had not interfered with Father’s
right and ability to visit his daughter.
It ruled it was in Minor’s best interest that Father’s parental rights
be terminated. The trial court declared
Minor “free for purposes of adoption with no consent of [F]ather with regard to
the adoption required.â€
Father
filed a notice of appeal from the judgment on February 10, 2012. In June 2012, Father made an offer of proof
to this court that Minor might have Native American ancestry. We granted his request to remand the matter
without reversing the judgment so the trial court could “effectuat[e] proper
inquiry and notice, if necessary, under the Indian Child Welfare Act (ICWA), 25
U.S.C. § 1901 et seq.†(See
1359, 1388-1390 (Noreen G.).)
On
March 8, 2013, the superior court filed written findings on the issue of
ICWA compliance.
title="">[5] Its findings state that notices were sent to
the tribes designated by Father as having a potential interest in Minor’s
ancestry. None of the responding tribes
elected to intervene as they had found no evidence indicating that Minor has
Native American ancestry. The superior
court therefore ruled that the requirements of ICWA had been fulfilled, and it
ordered the proceedings closed.
Discussion
Father
raises two issues in this appeal.
name="_ftnref6" title="">[6] First, he contends the failure to appoint
independent counsel for Minor requires reversal of the judgment. Second, he argues the trial court’s ruling
that he abandoned Minor is unsupported by substantial evidence. As we explain, we disagree with Father on
both counts.
I. The
Trial Court’s Failure to Appoint Counsel for Minor Was Harmless Error.
Father
first challenges the judgment on a ground not raised below. He argues the trial court’s failure to
appoint counsel for Minor compels reversal of the judgment declaring Minor free
from his custody and control. In his
view, the failure to appoint independent counsel for his daughter renders the
judgment voidable because it was in excess of the trial court’s
jurisdiction. Although we agree with
Father that the trial court’s apparent failure to consider appointing separate
counsel for Minor was error, we find the error harmless.
A. The
Trial Court Should Have Considered Appointing Counsel for Minor.
At
the beginning of a proceeding on a petition to free a child from parental
custody and control, section 7860 provides that “counsel shall be
appointed as provided in this article.â€
Under section 7861, “[t]he court shall consider whether the interests of the child require the
appointment of counsel. If the court
finds that the interests of the child require representation by counsel, the
court shall appoint counsel to represent the child, whether or not the child is
able to afford counsel.†(Italics
added.) Construing the statutory
predecessor to section 7861, the California Supreme Court held that “in
absence of a showing on the issue of the need for independent counsel for a
minor, failure to appoint constitutes error.â€
(In re Richard E. (1978) 21
Cal.3d 349, 354 (Richard E.).) Nevertheless, “failure to appoint counsel for
a minor in a freedom from parental custody and control proceeding does not
require reversal of the judgment in the absence of miscarriage of justice.†(Id.
at p. 355.)
As
we have explained, “in proceedings to free a child from parental custody and
control, typically each side asserts it is protecting the best interests of the
child and, in the process, the court becomes fully advised of matters affecting
the child’s best interests.†(
152, 170 (Neumann).) But “section 7861 makes clear that the
court has a nondiscretionary duty to
at least consider the appointment†of
counsel for the child. (
appoint counsel is a matter within the trial court’s discretion, where there
has been no showing on the issue of whether the child’s interests will be
satisfactorily represented, “the court’s failure to appoint counsel is deemed
there was a need to appoint independent counsel, we must conclude the failure
to appoint counsel was error.
name="_ftnref7" title="">[7] (Ibid.)
A.
Father
therefore devotes a considerable portion of his opening brief to arguing that
the prejudice requirement established in Richard
E. is outdated and unsound. He
contends the trial court’s error requires reversal of the judgment without a
need to examine the issue of prejudice.
Confronted with unfavorable California Supreme Court authority, “Father
is reduced to arguing that [Richard E.]
was wrongly decided[.]†(
p. 1439.) We are not free to
reconsider the holding of Richard E.,
because as an inferior court, we obviously are bound by that opinion
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
In
any event, we have no reason to doubt the continuing vitality of
Court recently relied on the reasoning of Richard
E. in holding that the failure to appoint separate counsel for separate
siblings in a juvenile dependency
proceeding was subject to harmless error review. (See In
re Celine R. (2003) 31 Cal.4th 45, 58-59 [following Richard E.].) This would
seem to refute Father’s contention that the prejudice rule is unsound and
outdated. In any event, because
in the prejudice rule “must
come, if at all, from the California Supreme Court.†(Taylor
v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 593.)
C. Father
Does Not Explain How He or Minor Might Have Been Prejudiced by the Trial
Court’s Failure to Consider Appointment of Counsel for Minor.
There
is nothing in the record to indicate the trial court ever considered whether
Minor’s interests required the appointment of independent counsel, and
“[b]ecause the record fails to demonstrate whether there was a need to appoint
independent counsel, we must conclude the failure to appoint counsel was
error.†(Neumann, supra, 121 Cal.App.4th at p. 171; but see
242-243 [failure of appellant to provide transcripts of relevant hearings permitted
court to assume trial court had properly performed its duty and considered
appointment of counsel].)
name="_ftnref8" title="">[8] This does not end our inquiry, however, for
under the rule announced in Richard E.,
supra, 21 Cal.3d 349, the trial court’s failure to consider appointment of
independent counsel for the minor child is subject to harmless error
analysis. (In re Sarah H. (1980) 106 Cal.App.3d 326, 330.) We therefore turn to the question of harmless
error.
Father
does not point to any factual circumstances specific to this case demonstrating
that failure to appoint counsel was prejudicial. Instead, he argues that failure to appoint
counsel for a minor child cannot be deemed harmless “where, as in the instant
case, the petitioner is a custodial parent and/or step-parent seeking to
terminate the non-custodial parent’s rights, and there is a background of the
custodial parent having antagonism toward the non-custodial parent’s rights to
participate in the child’s life[.]†In Father’s
view, “when the proceeding is brought by a person authorized to do so because
they have their own ‘interest’ in freeing the child from the parent, that
indicates that the child’s interests will not be represented without
appointment of independent counsel for the child, and therefore, in such a
case, failure to appoint counsel for the child requires reversal of the
judgment terminating parental rights.â€
We disagree.
First,
Father’s argument fails as a factual matter.
Father does not explain what he means by Mother’s claimed “antagonismâ€
to his right to participate in Minor’s life, and the trial court did not appear
to believe there was any such antagonism.
In fact, Father’s argument flies in the face of the trial court’s
express finding that Mother “has not interfered with [F]ather’s right and
ability to visit the child.†The trial
court also found that Father could have located Mother and Minor years before
he filed his petition to establish parentage, but the court did not believe he
would have filed the petition earlier if he had had their address and telephone
number. Thus, there is nothing in the
trial court’s findings to support Father’s assertion that Mother was
antagonistic to his participation in Minor’s life. To the extent Father seeks to base this claim
on his own testimony, the trial court was not required to believe his version
of events.
re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 506 [trial
court not required to believe father’s testimony regarding intent to abandon
child] (Jill & Victor D.).)
Second,
Father does not explain what interests Minor might have that were not
adequately represented at trial.
Instead, he simply seems to assume that because this proceeding was
brought by Mother, a custodial parent, against Father, who was a noncustodial
parent, Minor’s interests cannot have been adequately represented. While Father complains that “lack of counsel
for the child will inherently tend to result in the record not showing that the
child had interests that should have been independently represented,†he does
not even tell us what these interests could possibly
have been. Since Father does not
identify Minor’s supposed independent interests, and he does not suggest Mother
has failed to provide for Minor’s welfare, we will not assume Minor had unspecified
interests that were not represented.
(Cf. In re Jenelle C. (1987)
197 Cal.App.3d 813, 818-819 [where there was no suggestion that department of
social services failed to take steps in furtherance of minor’s welfare, trial
court did not abuse discretion in failing to appoint independent counsel for
minor].)
Moreover,
the record contains no indication that Minor had any interest in having the
petition denied. The investigator
interviewed Minor about her wishes, and she expressed no desire to reunify with
Father. (See In re Mario C. (1990) 226 Cal.App.3d 599, 607-608 [where minors
expressed no interest in living with their biological mother, there was no
evidence they had an interest in having termination petition denied; failure to
appoint independent counsel held harmless].)
Rather, Minor was happy with her family and expressed the desire to
continue living with Mother. It was also
undisputed that Mother and Eric E. were providing a stable and loving home for
Minor and that Eric E. intended to adopt her.
In these circumstances, we do not see what interest Minor might have had
that was not adequately addressed by the parties’ presentations below. (See Adoption
of Michael D. (1989) 209 Cal.App.3d 122, 135 [where probation report and
witness testimony agreed that minor wanted stepfather, not biological father,
as his dad, failure to appoint counsel for minor was harmless].)
Third,
even if we ignore the flawed premises of Father’s argument, it nevertheless
fails. Father has cited no case holding
that in a freedom from custody and control proceeding, a minor child’s
interests can never be adequately
represented without independent counsel if the petitioner is a custodial parent
seeking to terminate the rights of a noncustodial parent. (See T.P.
v. T.W., supra, 191 Cal.App.4th at p. 1439 [Father’s legal argument
rejected because he failed to cite a single case supporting it].) This is unsurprising, since the rule Father
urges us to adopt would effectively require appointment of independent counsel
for minor children in all such
cases. But the case law interpreting
section 7861 makes clear that the decision whether to appoint counsel for
the minor child is a matter within the trial court’s discretion. (See, e.g., Richard E., supra, 21 Cal.3d at pp. 354-355 [“The [trial]
court possesses broad discretion in determining need for counselâ€];
p. 171 [“the ultimate decision whether to appoint counsel is certainly in
the lower court’s discretionâ€].)
Acceptance of Father’s argument would be tantamount to eliminating the
trial court’s discretion in any case in which a custodial parent seeks to
terminate a noncustodial parent’s rights.
D.
Distinguishable.
Father
relies on cases holding that where freedom from custody and control proceedings
are instituted by a public agency, counsel for the agency can adequately
represent the child’s interests. (See
839-840; In re Jenelle C., supra, 197
Cal.App.3d at pp. 818-819.) He
seems to ask us to infer from these cases that parties other than public
agencies cannot, as a matter of law, effectively represent the child’s
interests. In our view, no such
inference is justified.
We
do not quarrel with the holdings of the cited cases, but we do not read them as
implying that only counsel for a
public agency—and no one else—is capable of representing the child’s interests
in a freedom from custody and control proceeding. To the contrary, Neumann, supra, 121 Cal.App.4th 152 was a case in which the mother,
the custodial parent, petitioned to free her children from their father’s
custody and control. (
child from parental custody and control, typically each side asserts it is
protecting the best interests of the child and, in the process, the court
becomes fully advised of matters affecting the child’s best interests.†(Id.
at p. 170.) Father does not explain
why the court below would not have been adequately advised of matters affecting
Minor’s interests, and absent such an explanation, we are unwilling to assume
the court’s decision was uninformed.
Father
cites a number of cases for the argument that failure to appoint independent
counsel for the child can never be harmless when the proceeding is brought by a
“custodial parent having antagonism toward the non-custodial parent’s
rights[.]†These cases do not assist
him. In
re Sarah H., supra, 106 Cal.App.3d 326 concluded that the trial court’s
failure to consider appointment of counsel for the children was harmless
error. (Id. at p. 330.) Because
the central issue in that case was the father’s fitness to retain parental
rights, and the issue was not a close one, there was no miscarriage of
justice. (Ibid.) Likewise, in
Cal.App.3d 122, the court concluded that failure to appoint independent counsel
for the minor was harmless. (
of Jacob C. (1994) 25 Cal.App.4th 617, upon which Father also relies, bears
no resemblance to the case before us. In
that case, Division Three of this district concluded the failure to appoint
independent counsel for the minors was prejudicial. (Id.
at pp. 625-626.) But there, the
minors’ biological mother, who had absconded with one of the children and
disappeared, was barred from contesting the petitions and thus “the termination
proceedings were uncontested.†(
proceeding was “unusual.†(
That is not the case here.
Father
also seeks support from our decision in Neumann,
supra, 121 Cal.App.4th 152, and he devotes a portion of his opening brief
to a lengthy analysis and criticism of our opinion. Father’s counsel perceives “un-clarity†in
our decision, finds our disposition of the case “puzzling,†and opines that it
misstates applicable law. We do not
share counsel’s view.
In
Neumann, the trial court failed to
comply with a number of procedural requirements applicable to proceedings to
free a minor from parental custody and control.
It did not consider the evaluator’s report; it failed to interview one
of the minors, although the child was 10 years old at the time of trial; and it
did not consider appointment of counsel for the children. (Neumann,
supra, 121 Cal.App.4th at pp. 168-171; see §§ 7851,
subd. (d) [requiring consideration of evaluator’s report]; 7891,
subd. (a) [requiring in-chambers hearing with subject child who is 10
years of age or older].) We held that
both the failure to consider the evaluator’s report and the failure to
interview one of the minors constituted “prejudicial error.†(Neumann,
supra, 121 Cal.App.4th at pp. 169, 170.) We also deemed the trial court’s failure to
appoint counsel erroneous (id. at
p. 171), but we had no need to determine whether this error alone was
prejudicial, since the other prejudicial errors already identified required us
to vacate the judgment. We then
concluded that “the trial court’s errors
compel us to vacate the judgment.†(
the sum of the trial court’s errors, rather than solely upon its failure to
consider appointment of counsel for the minors.
There is thus nothing in Neumann
that would support Father’s argument that failure to appoint counsel can never
be harmless error in a freedom from parental control proceeding brought by a
custodial parent who is allegedly “antagonistic†to the rights of the
noncustodial parent against whom the proceeding is brought.
For
the foregoing reasons, we conclude that the trial court’s failure to consider
appointing counsel for Minor was harmless error.
II. Substantial
Evidence Supports the Trial Court’s Finding that Father Intended to Abandon
Minor.
Father
contends substantial evidence does not
support the trial court’s finding that he intended to abandon Minor. He appears to make three separate arguments.
evidence to support a finding that he left Minor in Mother’s care and
custody. Second, he argues his
undisputed failure to provide any support for Minor during her lifetime does
not evidence an intent to abandon her, because no demand for support was made and
he merely acquiesced in Mother’s support for Minor. Third, Father claims the trial court did not
have clear and convincing evidence that his failure to communicate with Minor
indicated he intended to abandon her, because the trial court allegedly did not
consider the “underlying dynamics†of his relationship with Mother.
Father
thus appears to contend that there is insufficient evidence to establish the
first and third elements of section 7822 abandonment—that he “left†Minor
with Mother and that he intended to abandon his child. (See Adoption
of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.) [listing elements of abandonment under
§ 7822].) Our examination of the
record reveals abundant evidence of both of these elements. We therefore reject Father’s arguments.
A.
A
trial court’s finding of abandonment is fundamentally a question of fact and
must be upheld on appeal so long as it is supported by substantial
evidence. (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.) Although in the court below, such a
determination must be made by clear and convincing evidence (§ 7821), our
review is limited to determining whether substantial evidence supports the
conclusions reached by the trial court in applying this standard. (In re
B.J.B. (1986) 185 Cal.App.3d 1201, 1211 (B.J.B.).)
On
review for substantial evidence, “[i]t is the trial court’s role to assess the
credibility of the various witnesses, to weigh the evidence to resolve the
conflicts in the evidence. We have no
power to judge the effect or value of the evidence, to weigh the evidence, to
consider the credibility of witnesses or to resolve conflicts in the evidence
or the reasonable inferences which may be drawn from that evidence. [Citations.]
Under the substantial evidence rule, we must accept the evidence most
favorable to the order as true and discard the unfavorable evidence as not
having sufficient verity to be accepted by the trier of fact.†(In re
Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
On appeal, all conflicts in the evidence must be resolved in favor of
the prevailing party and all reasonable inferences must be indulged in to
support the judgment. (
pp. 1010-1011.) Father has the
burden of showing the challenged finding or order is not supported by
substantial evidence. (
As
relevant here, section 7822 provides, “(a)
A proceeding under this part may be brought if any of the following
occur: [¶] . . . [¶] (3) 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
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 or
parents have made only token efforts to support or communicate with the child,
the court may declare the child abandoned by the parent or parents.â€
“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 the
relevant period]; 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€™â€
(Allison C., supra, 164
Cal.App.4th at p. 1010.)
B.
that Father “Left†Minor.
Father
first contends the evidence is insufficient to establish that he left Minor in
Mother’s care. (See § 7822,
subd. (a).) A parent leaves a child
within the meaning of the statute by voluntarily surrendering the child to
another person’s care and custody. (
p. 1011.) In determining whether
Father left Minor, “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.’
[Citation.]†(
Cal.App.4th at p. 504.) Even where
a child is effectively taken from a parent, “the parent’s later voluntary
inaction may constitute a leaving with intent to abandon the child. [Citation.]â€
(Ibid.) Thus, if a father never seeks to take
parental responsibility for his child and instead chooses to leave the child
with the mother, he may be found to have left the child in the mother’s care
and custody. (Allison C., supra, 164 Cal.App.4th at p. 1012.)
In
this case, Mother’s testimony established that Father left Minor in Mother’s
care around the time of Minor’s birth in June 2003. Since that time, he has never provided any
financial support for his daughter. (Cf.
Allison C., supra, 164 Cal.App.4th at
p. 1012 [father who gave daughter $1,100 in a three-year period failed to
provide support].) After Minor’s birth,
Father visited her only once, when she was approximately two months old. Thereafter, Father made no attempt to contact
Minor, even though he knew where she lived when she resided with Mother’s
parents, and even though he could easily have found Mother’s address and
telephone number after Mother moved out of her parents’ house. (See In
re Randi D. (1989) 209 Cal.App.3d 624, 629-630 [finding that father left minor
children supported by substantial evidence where father did not communicate
with children for five years].) Like
Mother and Minor, Father resided in the Antioch-Pittsburgh area until shortly
before trial, and he had random encounters with Mother over the years. (See B.J.B.,
supra, 185 Cal.App.3d at p. 1212 [ample evidence of intent to abandon
where father and minor lived in same geographical area for relevant
period].) Yet at no time prior to filing
his petition in November 2009 did Father seek any parental role in Minor’s
life. “In other words, he was content to
leave to [M]other all real parental responsibility for [Minor].†(Allison
C., supra, 164 Cal.App.4th at p. 1012.) Since Father “voluntarily abdicated the
parental role,†the trial court did not err in finding he had left Minor in
Mother’s care and custody for the statutory period. (Ibid.)
Despite
this evidence, Father argues that what is required to prove he “left [Minor]
. . . in the care and custody of [Mother] for a period of one yearâ€
(§ 7822, subd. (a)(3)) is “a history in which [Father] deliberately
left the child and rejected [M]other’s attempts to get him to continue a
parental relationship.†He contends such
a history is “exemplified†by Amy A.
(2005) 132 Cal.App.4th 63 (Amy A.). Father’s argument is both factually and
legally flawed.
Father
bases his argument on the factual claim that “[Mother] left him, taking the
child with her. Thus, the child was
‘taken’ from him without his consent.â€
The portions of the record Father cites to support these claims actually contradict
them. For example, Father cites the
investigator’s report of an interview with Mother, but the report clearly
states, “[Mother] said [Father]
if it did not exist.
name="_ftnref11" title="">[11] (James
B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) Much less may he rely on inaccurate
representations of the evidence itself.
Father’s
reliance on Amy A., supra, 132
Cal.App.4th 63 is somewhat puzzling. In
that case, the court concluded “that a parent may be found to have ‘left’ a
child in another person’s care and custody within the meaning of
section 7822 even when the child moves away with the other parent.†(Id.
at p. 69.) This is precisely what
occurred here. Indeed, the facts of
the appellant father, because he had been deprived of legal custody by a court
order in the parents’ divorce proceeding.
(Id. at p. 66.)
While
Father argues his “acquiescence in [Mother’s] custody does not reasonably
indicate that he had a subjective intent to abandon the child,†other courts
have held that such voluntary abdication of the parental role is evidence that
a parent has left his child in the care and custody of the other parent. (Allison
C., supra, 164 Cal.App.4th at p. 1012; see Jill & Victor D., supra, 185 Cal.App.4th at p. 505
[failure to communicate with and provide support for child for a year is
circumstantial evidence that father left his children].) This evidence supports the trial court’s
finding that Father left Minor in Mother’s care and custody for the statutory
period. Since the evidence also supports
the findings that he failed to support Minor and failed to communicate with her
(matters we discuss below), it gave rise to a presumption that Father intended
to abandon Minor. (See § 7822,
subd. (b) [“failure to provide support, or failure to communicate is
presumptive evidence of the intent to abandonâ€].)
C.
an Intent to Abandon Her.
Father
next contends the trial court misunderstood the law when it found he had failed
to provide support for Minor. He argues
no intent to abandon is shown where a parent was either unable to provide
support or no demand for support was made and the parent merely acquiesces in
the support provided by the child’s caregiver.
Father seems to argue both of these circumstances apply here.
With
regard to the issue of ability to support the child, it is undisputed that
Father has never provided any financial support for Minor, and on appeal he
does not claim he has. Instead, he
appears to argue he was financially unable to provide support for her, but the
trial court explicitly resolved this issue against him, finding there was no
evidence Father could not support his child.
In a rather surprising argument, Father blames the trial court for this
lack of evidence, criticizing the court for failing to ask questions about what
he calls the “non-issue of whether he had been financially unable to pay when
no demand for support had been made[.]â€
But it was not the trial court’s function to make Father’s case for him.
In
arguing Mother failed to make a sufficiently clear demand for support, Father also
ignores our standard of review. Heedless
of our limited function as a reviewing court, Father attempts to reargue the
facts of the case. Referring to Mother’s
testimony that she once “asked him if he brought anything for [Minor] in terms
of diapers or money,†Father suggests this “hardly indicates that [Mother] was
actually asking him for child support†and claims “her testimony at trial may
have been an attempt to provide support for a finding of failure to support,
when the facts did not actually support such a claim.†The import and weight of this testimony were
matters for the trial court. (See
Cal.App.4th at p. 503.) Father’s
undisguised attack on Mother’s veracity also invites us to “pass on the
credibility of witnesses,†which we may not do.
(Ibid.)
Father
seeks to excuse his undisputed failure to provide support for his daughter by
referring to his own testimony that he offered to help Mother with support, but
she told him she did not need any.
required to believe this testimony. (
Cal.App.4th at p. 506.) Although
Father claims the trial court made no finding on whether Mother had demanded
support, Father does not claim he requested any such specific finding, and thus
no such finding was required. (
p. 631.) Moreover, the trial court
found Mother had proved all the elements of abandonment under
section 7822. Even assuming that a demand for support is a prerequisite to
a finding of abandonment, then the trial court impliedly found Mother had
demanded support, and its finding must be upheld if substantial evidence
supports it. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) Mother’s testimony provides all the evidence
necessary.
D. The
“Emotional Dynamics†of the Parents’ Relationship Are Irrelevant to the Issue
of Father’s Intent.
Addressing
the issue of his failure to communicate with Minor, Father claims the trial
court should have considered the “emotional dynamics†at work in his break-up
with Mother, because these dynamics “may reasonably affect the non-custodial
parent’s conduct in a manner that can look like lack of interest in developing
or maintaining a relationship with the child.â€
We fail to see how such emotional dynamics are relevant to determining
whether Father’s failure to communicate with Minor indicates an intent to
abandon her. (See Jill & Victor D., supra, 185 Cal.App.4th at p. 503
[reasons why family initially broke up are irrelevant to § 7822 analysis];
id. at p. 508 [mother’s feelings
about father’s failure to pay child support irrelevant to issue of father’s
intent].)
Furthermore,
as the Second District has explained, “the reality is that parents sincerely
interested in maintaining contact, whether by telephone, card or personal
visit, with their children . . . will do so under ordinary
circumstances in any six-month period.â€
(In re Rose G. (1976) 57
Cal.App.3d 406, 420.) Here, the trial
court expressly found that Mother had not interfered with Father’s right and
ability to visit his daughter. Father
simply did not exercise that right, even though Minor lived nearby. (B.J.B.,
supra, 185 Cal.App.3d at p. 1212.)
Thus, the trial court was entitled to find that Father’s efforts to
contact Minor “were at best perfunctory, and it was not required to credit his
protestations of continuing parental interest, particularly given the vagueness
and inconsistency of his testimony.†(
E. No
Authority Requires a Showing of Parental Unfitness Before a Child May Be Freed
From Parental Custody and Control Under Section 7822.
Finally,
Father contends there can be no abandonment under section 7822 unless his
conduct shows “parental unfitness.â€
Father cites no case decided under section 7822 or its predecessors
holding that a finding of parental unfitness is required before a child may be
considered abandoned. We find this lack
of authority unremarkable, because in contrast to other provisions of this part
of the Family Code, section 7822 does not mention parental unfitness. (Compare § 7822, subd. (a)
[elements of abandonment] with § 7825, subd. (a)(2) [freedom from
control proceeding may be brought where facts of crime of which parent was
convicted “prove the unfitness of the parentâ€].) We are not at liberty to add a finding of
parental unfitness to the findings the Legislature has chosen to require in
section 7822, and Father offers us no authority for doing so. We thus reject this argument as legally
unsupported and because it is not set forth in a separate heading. (In re
Marriage of Carlsson, supra, 163 Cal.App.4th at p. 294.)
Disposition
The
judgment is affirmed.
_________________________
Jones,
P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1]
All statutory references are to the Family Code.
name="_ftn2" title="">[2]
The parties stipulated that Mother’s telephone number and address were listed
in the local phonebooks for the years 2007, 2008, and 2009. At the time of trial, Mother still had the
same home telephone number she had obtained in January 2006. Mother also maintained the same cell phone
number from 2003 to 2006. Father knew
this number, because he claimed at trial that in 2003, he would call Mother at
that number every other day and continued to do so until her number changed.
