In re Jacklyn F.

• Court: California Court of Appeals
• Writing for the Court: Davis
• Citation: In re Jacklyn F., 7 Cal.Rptr.3d 768, 114 Cal.App.4th 747 (Cal. App. 2003)
• Decision Date: 22 December 2003
• Docket Number: No. C043859.,C043859.
• Parties: In re JACKLYN F., a Minor. Harvey F. et al., Petitioners and Respondents, v. Noel B., Objector and Appellant.

7 Cal.Rptr.3d 768

114 Cal.App.4th 747

In re JACKLYN F., a Minor Harvey F. et al., Petitioners and Respondents, v. Noel B., Objector and Appellant.

No. C043859.

Court of Appeal, Third District.

December 22, 2003.

Gail C. Schulze, Aubum, for Objector and Appellant.

Sherrill R. Linker for Petitioners and Respondents.

DAVIS, J.

Noel B. (appellant), the mother of Jacklyn F. (the minor), appeals from the trial court's order granting a petition filed by the minor's paternal grandparents (the grandparents) to terminate appellant's parental rights based on abandonment. (Fam.Code, §§ 7820, 7822;¹ Cal. Rules of Court, rule 39.1A(a).) Appellant raises a variety of challenges to the trial court's factual and legal findings.

We shall conclude that the requirements for abandonment under section 7822 were not met because the minor was not "left" in the custody of another for the period of time required by the statute. Accordingly, we shall reverse the termination of appellant's parental rights.

FACTS AND PROCEDURAL HISTORY

On October 13, 1998, the grandparents filed a petition for guardianship of the seven-year-old minor. According to the petition, the grandparents previously had legal guardianship of the minor from August 1995 until October 1997, at which time the guardianship was terminated because appellant had completed a residential drug treatment program. The grandparents alleged that appellant became homeless and had come to their home in September 1998 with the minor and the minor's half sibling. According to the petition, appellant left the children in the grandparents' care "[f]or days at a time ... without any word of where she was going or how long she would be gone." As of the date the petition was filed, appellant had been gone for three days and had called only once, and the grandparents did not know where she was or when she would return.

The grandparents were granted temporary guardianship of the minor on October 22, 1998.

The petition, and a later report by an investigator for the court, chronicled the minor's chaotic life while in appellant's care, involving exposure to domestic disputes and being left to care for her infant sibling while appellant slept. According to the investigator's report, appellant's whereabouts were unknown, and the minor's father consented to the guardianship. The minor told the investigator that she would rather remain with the grandparents than return to appellant.

In November 1998, appellant filed a responsive declaration, in which she objected to the orders sought and requested that the minor be returned "to parent." She appeared at the hearing on the grandparents' petition, and the matter was referred back to the investigator to obtain input from appellant.

Appellant told the investigator she felt the grandparents "had gone behind her back" when they filed the guardianship petition and that "she just want[ed] to get her daughter back." According to the investigator, appellant "seemed to" contend that the minor was staying with the grandparents "until [appellant] could get her life together...." The investigator continued to recommend that the guardianship petition be granted.

An attorney made a special appearance with appellant at the next hearing, which occurred on December 10, 1998. The trial court found the allegations in the grandparents' petition true and appointed them guardians of the minor. The court ordered supervised visitation for appellant, to occur once a week for six hours, and appellant was permitted to have telephone calls with the minor three times a week.

One week after the hearing, the grandparents filed an application for a restraining order against appellant in response to numerous harassing messages appellant had left on their answering machine. The grandparents sought an order restraining appellant from having contact with them or the minor, "[e]xcept that peaceful contacts by telephone and scheduled supervised visitation relating to the minor child shall be permitted."

A temporary restraining order was granted in February 1999, and was personally served on appellant. In April 1999, the trial court granted the restraining order as requested.

At a hearing in July 1999, the court ordered the parties to attempt to work out a temporary visitation schedule. According to a report prepared for the court, though granted visitation in January 1999 appellant did not contact the visitation coordinator until March 1999 to schedule a visit with the minor, and she visited the minor only once, in April 1999. In August 1999, appellant was present at a hearing at which the trial court ordered "all existing orders [to] remain in full force [and] effect."

In May 2002, appellant filed a request for supervised visitation, telephone contact and counseling with the minor, utilizing a form entitled "Petition for Termination of Guardianship." The grandparents filed an opposition to appellant's petition, objecting to visitation.

In August 2002, the grandparents filed a petition for adoption of the minor, as well as a petition to terminate parental rights. They alleged the minor had been residing with them for more than a year and appellant had not been in contact with the minor or paid support for her for the preceding year. They also set forth that the minor's father was prepared to relinquish his parental rights so that the adoption could proceed.

According to an amended report prepared for the court by the probate investigator, the minor, who was in sixth grade, said she wanted to live with the grandparents "for the rest of her life" and did not want to have contact with appellant. The minor reported she had not had contact with appellant since second grade.

Appellant reported she had not used methamphetamine or alcohol for a year or more. She told the probate investigator that she felt any fears the minor had concerning contact with her were the result of "brainwashing" by the grandparents.

The minor's therapist reported she had been providing therapy to the minor for approximately six years. According to the therapist, the minor had made significant progress in therapy but she continued to have fears, including being afraid appellant would come to her school and take her. The therapist was unsure whether contact with appellant would cause the minor greater emotional harm or would help reduce her fears.

According to a report prepared for the court by a probate attorney investigator (attorney investigator), the minor said that she wanted her grandparents to adopt her because she was afraid appellant would try to "take her again." The minor said she was not going to attend the court hearing. The attorney investigator recommended that the petition be granted.

The grandparents filed a trial brief, in which they acknowledged that an agreement had been reached at a previous court hearing "that any communications to the minor by the natural mother be forwarded to [ ] the minor's therapist," who would determine whether they should be provided to the minor.

At the hearing on the grandparents' petition, which occurred in March 2003, the grandmother testified that there had been an order in place since January 1999 allowing appellant to visit the minor once a week, but appellant had visited the minor only once. The grandmother acknowledged that, since 1999, the minor's therapist had given her letters that appellant had written to the minor. However, none of the letters were shown to the minor and the minor was not told that appellant had tried to contact her, because the minor "was struggling with her own problems then." The minor's attorney recently gave the minor three letters from appellant, which the minor threw out.

The grandmother testified that the minor was attending therapy because she had problems sleeping and being left alone. According to the grandmother, the minor was concerned that appellant would "show[ ] up somewhere and tak[e] her." The minor's father and grandfather also testified to the minor's fears in this regard.

The minor's therapist testified that it was "imperative" that the minor be adopted by the grandparents "for her to continue the growth and development that she has achieved." The therapist felt the minor was genuinely afraid of living with appellant, and that she was not repeating what she had heard from other people.

The therapist testified she had received "a number of" letters from appellant, only some of which she had read. She said it was a difficult decision as to whether to give the letters to the minor, not because the letters were "bad," but because the therapist did not feel the minor was ready "to accept any kind of reaching out by [appellant]." The therapist kept the letters she received until the minor's appointments, at which time she would give them to the grandparents. According to the therapist, when she did not see the minor for a while, she would have "a stack" of letters to turn over. However, in 2002, the therapist received only one letter from appellant, and there had been no letters in 2003.

Appellant testified that, the last time she was in court, she was told she was not allowed to have any contact with the minor except by mail. According to appellant, she was instructed to mail letters to the minor's therapist, who would screen them. Appellant testified she wrote letters to the minor and sent them to the minor's therapist or her attorney. Appellant testified she had visited the minor twice since October 1998. She asserted that she did not know she was allowed to visit the minor, "[o]therwise, [she] would have visited [her]." Appellant denied being served with the restraining order that the grandparents had obtained (which stated that she continued to have visitation rights), and she thought she may have been incarcerated on the date indicated on the proof of service.²

Appellant testified she did not apply earlier to reestablish visitation because she had relapsed into drug use and "wasn't ready...