Adoption of J.D. v. C.D.
| Decision Date | 12 May 2023 |
| Docket Number | 2d Civil. B323444 |
| Parties | Adoption of J.D., a Minor. N.F., Plaintiff and Appellant, v. C.D., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
(Super. Ct. No. T000165) (Ventura County)
Norris Legal Group, Gina S. Berry and Cameron T. Norris for Plaintiff and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Respondent.
N.F (Mother) appeals a judgment denying her petition to declare her daughter J.D. free from the custody and control of C.D (Father). (Fam. Code, § 7822.[1]) The trial court found Father failed to communicate or visit J.D. for more than one year, but he rebutted the presumption of abandonment and Mother failed to present clear and convincing evidence that Father intended to abandon his child. We affirm.
Mother and Father are the unmarried parents of J.D., a teenage girl who was born in 2006. In 2008, they had "shared joint legal custody" of J.D., and Father had "supervised visitation" with J.D. Mother has had full legal and physical custody of J.D. since 2019.
Z. moved in to live with Mother in 2010. In 2019, Father filed a request to modify his visitation rights with J.D. to allow him to have "unsupervised visits." J.D. wanted the visits to "remain supervised." The family court denied Father's request.
In 2020, Z. married Mother and became J.D.'s stepfather.
On November 1, 2021, Mother filed a petition to terminate Father's parental rights to J.D. She alleged Father's last visit with J.D. was on August 19, 2019. She claimed Father "has not tried to contact the minor child for more than a year" and this constitutes an intent to abandon the child.
On February 22, 2022, the Ventura County Human Services Agency (HSA) filed a report with the trial court. The social worker interviewed Mother, the stepfather, and the child. J.D. told the social worker," 'I want to be adopted, [Z., the stepfather] is my dad.'" HSA did not interview Father. It recommended that J.D. "be freed to be adopted by the . . . stepfather."
Mother testified Father did not "reach out" to her to ask how J.D. "was doing." The last message she received from Father was in August 2019. Mother did not block Father from texting J.D. She set up "family counselling," but Father did not attend the counselling sessions. From September 2019 "to now," Father did not contact her to set up visits with J.D. Mother wanted Father's parental rights with J.D. terminated because he "hasn't been present consistently," he is not "dependable," and Z. "has stepped into the father role" for J.D.
J.D. testified the last time she saw Father was in 2019. Father "completely dropped off the face of the earth in, like, 2019." J.D. did not know why he did that. She was not afraid of Father. She wanted to be adopted by her stepfather. She was asked, "Do you believe that your father has ever stopped loving you?" J.D. said, "I really don't know." She was asked if she loved her father. She responded,
Father testified he did not intend to abandon J.D. He consistently visited the child in 2016, 2017, and 2018. Mother did not inform him of any counselling schedule for J.D. He stopped contacting the child because she was in the middle of a conflict between the adults. J.D. wanted to communicate with him, but Mother and the stepfather did not want her to text him. Father's text messages to his child were being blocked. He did not want the child "to be filled with unnecessary drama" or stress because of the conflict between the adults. Because the child was facing pressure from Mother and the stepfather, he did not want J.D. "to be put in a bad spot."
Father felt J.D. needed "a little space," and the period of no contact would give her that space. He believed it would be "temporary," and, given time, she "was going to come back" to him. Other factors that prevented him from visiting the child included the pandemic and the stepfather's threatening behavior.
The trial court denied the petition. It found there was a presumption of abandonment because Father had no contact with the child for more than one year. (§ 7822.) But Father "rebutted the presumption." "The facts of this case do not clearly and convincingly demonstrate that Father intended to abandon [J.D.]."
Section 7822, subdivision (a)(3), provides, in relevant part, "A proceeding under this part 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 on the part of the parent to abandon the child." "Accordingly, a section 7822 proceeding to terminate parental rights 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 the parent for the statutory period; and (3) with the intent on the part of the parent to abandon the child.'" (In re Aubrey T. (2020) 48 Cal.App.5th 316, 326, italics added.) "A trial court's finding of abandonment must 'be supported by clear and convincing evidence.'" (Ibid.) "On appeal, the reviewing court examines the entire record to determine whether there is substantial evidence to support the trial court's findings." (Ibid.)
The involuntary termination of the parent-child relationship "by state action must be viewed as a drastic remedy which should be resorted to only in extreme cases of neglect or abandonment." (In re T.M.R. (1974) 41 Cal.App.3d 694, 703, italics added.) Where the parent did not contact the child within the statutory period but he or she did not intend to abandon the child, termination of the parent's parental rights is not appropriate. (Ibid.; In re Aubrey T., supra, 48 Cal.App.5th at p. 326.)
"The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) But "the presumptive evidence may be overcome by opposing evidence and the question of intent to abandon is a question of fact to be decided by the trial court." (In re Bisenius (1959) 173 Cal.App.2d 518, 522-523, italics added.) The presumption may be rebutted by evidence showing the parent did not intend to abandon the child, valid reasons existed for not making contact, there was interference with the parent-child relationship by third parties, and the court may consider evidence showing the relationship the parent had developed with the child, or other factors. (In re Aubrey T., supra, 48 Cal.App.5th at p. 329; In re H.D. (2019) 35 Cal.App.5th 42, 53; In re E.M. (2014) 228 Cal.App.4th 828, 841; In re Allison H. (1991) 230 Cal.App.3d 154, 161; In re Jack H. (1980) 106 Cal.App.3d 257, 265.)
Mother contends the evidence is not sufficient to support the trial court's findings. We disagree.
Mother cites the evidence she produced and claims it shows Father abandoned the child. But the issue is not whether some evidence supports appellant, it is only whether substantial evidence supports the judgment. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
In deciding the sufficiency of the evidence, we must draw all reasonable inferences from the record in support of the judgment. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 10111012.) Mother claims Father's testimony was not credible and the trial court erred by relying on it. But we do not decide the credibility of the witnesses; that is a matter exclusively decided by the trial court. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) She claims the weight of the evidence she presented supports the granting of her petition. But we do not reweigh the evidence. The trial court exclusively decides the weight to be given to the evidence and it resolves evidentiary conflicts. (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1121.) "The testimony of one witness may be sufficient, as against any number of witnesses testifying to the contrary, for the proof of a fact in a civil case." (Zinn v. Ex-Cell-O Corp. (1957) 148 Cal.App.2d 56, 70-71; see also In re Marriage of Slivka (1986) 183 Cal.App.3d 159, 163.)
Father's testimony supported findings that he did not intend to abandon J.D. during the one-year period and that he had developed a substantial relationship with her. He said he "never stopped trying to be part of her life." He bought her gifts "this year and last year." He bought Christmas and birthday gifts for her. In 2016, 2017, and 2018, he saw J.D. "several times a month." He saw her at "soccer practices" and "softball practices." He would try "to make every practice." His visits involved substantial time. They would last "four to six hours." He financially supported this child by making "regular and consistent payments for child support." (In re E.M., supra, 228 Cal.App.4th at p. 840.)
Text messages between Father and J.D. supported his claim that he had developed a substantial relationship with her. The trial court found Father and J.D. "had exchanged loving and appropriate text messages, and there was no indication that [J.D.] was uncomfortable with her father or that she was reluctant to communicate with him." Because J.D. told Father that she wanted to spend more time with him, he filed a modification of visitation motion to have unsupervised visits with her.
But Father was surprised because of J.D.'s sudden change of attitude when she told a mediator that she wanted the visits to remain supervised. Father said Mother and J.D.'s stepfather had pressured her to change her attitude about...
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