In re Julia S., D050982 (Cal. App. 2/22/2008)

• Court: California Court of Appeals
• Writing for the Court: O'Rourke
• Decision Date: 22 February 2008
• Docket Number: D051498,D050982
• Citation: In re Julia S., D050982 (Cal. App. 2/22/2008) (Cal. App. 2008)
• Parties: In re JULIA S., a Minor. LLOYD C., Plaintiff and Respondent, v. EFRAIN G., Jr., Defendant and Appellant. In re Julia S. on Habeas Corpus.

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In re JULIA S., a Minor LLOYD C., Plaintiff and Respondent, v. EFRAIN G., Jr., Defendant and Appellant In re Julia S. on Habeas Corpus.

D050982

D051498

Court of Appeals of California, Fourth Appellate District, Division One

February 22, 2008

NOT TO BE PUBLISHED

Consolidated Appeal from a judgment of the Superior Court of San Diego County and petition for writ of habeas corpus, No. A54013, Susan D. Huguenor, Judge. Judgment reversed and case remanded; petition denied.

O'ROURKE, J.

Efrain G., Jr., (Efrain) appeals the judgment declaring his daughter, Julia S., free from his custody and control (Fam. Code, § 7822) upon the petition of Julia's stepfather, Lloyd C. (Lloyd), and has filed a petition for writ of habeas corpus. In his appeal, Efrain contends there is no substantial evidence supporting the trial court's findings pursuant to Family Code section 7822, subdivision (a), that he "left" Julia in the care and custody of her mother, S.C., failed to support Julia and attempt to communicate with her for one year, and intended to abandon her. In both the appeal and the petition, Efrain contends he received ineffective assistance of counsel and the failure of Lloyd and the court to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) constitutes reversible error. We conclude there was no proper ICWA inquiry, and reject the remaining contentions.

I. BACKGROUND

S.C. became pregnant shortly after she and Efrain began dating in April or May 2002. She told him about the pregnancy in June, but he did not believe he was the father. They ended their relationship in August or October. Efrain, who had stopped taking medication for his bipolar disorder, began harassing S.C., coming to her home, and calling her constantly.

In December 2002, Efrain filed a petition for paternity testing and visitation.¹ In January 2003, S.C. filed a response, requesting sole legal and physical custody, with supervised visitation for Efrain. Julia was born later that month.

Efrain visited Julia no more than four times. The last visit took place in February or March 2003, when she was approximately two months old. Efrain continued to harass S.C., sending inappropriate letters and drawings to her and Julia.

In March 2003, Efrain and S.C. participated in family court mediation. During the mediation, they agreed S.C. would have custody of Julia. The mediator recommended Efrain and S.C. share joint legal custody, Julia's primary residence be with S.C., and Efrain have supervised visits, seek psychiatric treatment, and take medications as prescribed. Pending paternity testing, the family court granted S.C. sole legal custody, and allowed Efrain supervised visits if he provided proof of a psychological evaluation, and a doctor's recommendation stating whether he should take medication.

A paternity test failed to exclude Efrain as Julia's father, and a paternity judgment was entered. On June 20, 2003, the family court granted S.C. sole legal custody of Julia. The order stated: "Neither parent shall move the residence of the child out of San Diego County without giving the other parent a 60-day advance written notice and obtaining the other parent's written permission prior to the move or an order of the Court granting the move." The court also made the following order: "[Efrain] to immediately begin a patient-therapist relationship with a psychiatrist of his choice and to establish the relationship. [¶] "[Efrain] is to mail a letter to [S.C.] from the psychiatrist. The psychiatrist's letter shall outline the patient-therapist relationship and compliance of same. [Efrain] shall have no other communication with [S.C.] [¶] When [S.C.] receives the letter, she may contact Real Solutions and set up supervised visitation for 2 hours per week. The supervised visitation is to be at [Efrain]'s expense." [¶] The court further orders [Efrain] to enroll in a 52-week Domestic Violence class from the approved list at Family Court Services." The court stated the issue of visitation could be addressed again if Efrain received treatment. Finally, the court issued a restraining order against Efrain, ending on June 19, 2006, prohibiting him from harassing S.C., Julia, and the maternal grandparents and requiring him to stay 100 yards away from them. The restraining order did not prevent him from contacting the protected parties. Efrain was in court when these orders were made.

The court did not order Efrain to pay child support, and Efrain, who received Supplemental Security Income (SSI) for his bipolar disorder, did not provide support for Julia. S.C. received $ 29 per month from SSI for Julia beginning in 2004.

Efrain never attended the court-ordered domestic violence course. He never returned to court to request visitation, and claimed he did not know he could petition to have the restraining order lifted. It was his understanding that his psychiatrist could send a letter to S.C. stating he had begun treatment, or he could "have the court process papers to be served [on her]." He never had a psychiatrist send a letter to S.C. During the three-year period of the restraining order, he tried to improve his life and waited to have visitation with Julia. He bought gifts for her, and spoke about her almost every day. He attended parenting classes in 2005 and 2006.²

After the restraining order expired, Efrain tried to contact S.C. to set up visitation with Julia. He was unable to reach her. In mid-2006, he called the maternal grandmother and sought to arrange visitation. In August, he was served with notice that Lloyd was now S.C.'s attorney of record. The notice gave the address and telephone number of Lloyd's law office. He did not contact Lloyd.

Efrain attended therapy on and off for many years. In September 2006, he resumed therapy with a psychologist so he could obtain visitation. His therapist recommended he be allowed supervised visitation initially, then unsupervised visitation. In January 2007, Efrain began taking medication. In February, he filed a declaration stating: "Enclosed are certificates of completion. I would like my name on birth certificate. I honestly don[']t need visitation rights yet."³ In early 2007, Efrain attempted to serve S.C., at the maternal grandparents' home, with a conformed and altered copy of the declaration. He altered the declaration by replacing "I honestly don[']t need visitation rights yet" with "monitored visitations." The papers he tried to serve on S.C. were returned to him.

On March 2, 2007, when Julia was four years old, Lloyd filed the instant petition. The petition alleged Efrain left Julia in S.C.'s custody and had not communicated with or supported Julia for more than one year. In response, Efrain filed two letters, neither signed under penalty of perjury. In the first letter, he claimed S.C. "used pictures and drawings and letters `out of context' to file a 3 year restraint" and after the restraining order expired, he "made efforts to serve 'order to show cause' since Feb[ruary] 8th 2007 for monitored visitation rights." In the second letter, Efrain stated the custody order gave him "the right to know where [Julia] was" and he believed he "would be notified thr[ough] court" if she moved. The letter complained that Julia was living in Riverside County in early 2007, when Efrain was served with the summons in this case; she was in Michigan "thr[ough] the month of March (approx[imately] 1] week);" and "all my formal attempts thr[ough] the marshal[']s office for [S.C.] were sent back."

On March 15, 2007, Efrain filed an application for a restraining order in family court, seeking protection from S.C. and asking for visitation. The application acknowledged Efrain had received a letter from Lloyd and had telephoned Lloyd in response. The court denied the application.

On March 20, 2007, Efrain filed an ex parte application in family court. The application stated he had been trying to serve S.C.; the court had ordered that Julia reside in San Diego and Efrain be notified of a move; Lloyd's secretary had told him that S.C., Lloyd, and Julia were in Michigan; Lloyd's telephone number was in Riverside; and Efrain did not know Julia's whereabouts. On March 20, S.C. filed a responsive declaration. The declaration stated she had not received the psychiatrist's letter mentioned in the June 2003 order; there was no proof Efrain had enrolled in a domestic violence class as required by the order; he had S.C.'s service address (Lloyd's office), yet attempted to serve her at her parents' home; and she believed if Efrain had her home address, he would harass her and her family. The family court stayed all proceedings in view of the instant freedom from custody proceedings.

A social worker interviewed all the parties and recommended Efrain's parental rights be terminated. The trial took place on May 29, 2007. By clear and convincing evidence, the court found Efrain's "actions do indicate an abandonment" and it was in Julia's best interests to be freed for adoption.

II. DISCUSSION

A.

Family Code section 7822, Subdivision (a)

In his appeal, Efrain contends there is no substantial evidence supporting the trial court's findings pursuant to Family Code section 7822, subdivision (a) that he "left" Julia in S.C.'s care and custody, failed to support and attempt to communicate with her for one year, and intended to abandon her.

Family Code section 7822 states:

"(a) A proceeding under this part may be brought 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.

"(b) The failure to . . . provide support . . . or failure to communicate is presumptive evidence of the intent to abandon. If the parent [has] made only token efforts to support or communicate with the child, the...