John O. v. Scott R. (In re A.B.), D069257

CourtCalifornia Court of Appeals
Writing for the CourtIRION, J.
Citation2 Cal.App.5th 912,206 Cal.Rptr.3d 531
PartiesIN RE A.B., a Minor. John O. et al., Petitioners and Respondents, v. Scott R., Objector and Appellant.
Decision Date24 August 2016
Docket NumberD069257

2 Cal.App.5th 912
206 Cal.Rptr.3d 531

IN RE A.B., a Minor.

John O. et al., Petitioners and Respondents
v.
Scott R., Objector and Appellant.

D069257

Court of Appeal, Fourth District, Division 1, California.

Filed August 24, 2016


206 Cal.Rptr.3d 534

Lelah S. Fisher, San Diego, under appointment by the Court of Appeal, for Objector and Appellant.

Elizabeth C. Alexander, Jamul, and Neal B. Gold, under appointment by the Court of Appeal, for Petitioners and Respondents.

Carl Fabian, under appointment by the Court of Appeal, for Minor A.B.

IRION, J.

2 Cal.App.5th 915

Scott R. appeals from an order terminating his parental rights to his biological daughter, A.B., under Family Code section 7822,1 which authorizes the termination of rights of a parent who “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 ... with the intent ... to abandon the child.” (§ 7822, subd. (a)(3), italics added.) He contends that the one-year statutory period refers only to the year immediately preceding the filing of the petition for termination of parental rights, which precludes its application to him. Alternatively, Scott asserts that reversal is warranted in any event because (1) he rebutted the presumption that he intended to abandon A.B., (2) the termination of his rights was not in A.B.'s best interests and (3) the juvenile court erred in determining that the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq. ) did not apply absent proof that a tribe he identified actually received notice as required under that statutory scheme. We reject Scott's arguments and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Scott and Michaela O. met in November 2005. The couple moved in together three and one-half months later, and lived together on and off for almost four years. During that time, Scott was using marijuana and alcohol. After Michaela became pregnant with A.B., she broke up with Scott and moved out. Michaela gave birth to A.B. in November 2009. Scott was not present for the birth, but visited the hospital two or three hours later, bringing a pizza and asking to hold the baby. Scott was not named as A.B.'s father on A.B.'s birth certificate.

Scott sent Michaela a $50 money order, but she rejected it. He also offered to bring her baby food, but Michaela told him she did not need it, as A.B.

2 Cal.App.5th 916

was breastfeeding. Scott did not offer to provide any further assistance and did not see A.B. again until two months later, in January 2010, when he met with Michaela and A.B. for approximately two hours. Scott did not otherwise send gifts, cards or other items to A.B.

In early 2010, Michaela sought benefits for A.B. through the Department of Child Support Services (DCSS). Scott questioned whether he was A.B.'s father and requested a paternity test, noting on his income and expense declaration that if A.B. was his child, he would pay support and “wish for partial custody.” Around that same time, Scott visited Michaela's house but Michaela was not available to see him, and she did not learn of the visit until after Scott had left.

Scott was determined to be A.B.'s biological father and the court issued an order in September 2010 requiring him to pay DCSS for A.B.'s support and to obtain health insurance for her if “available at no or reasonable cost.” Scott did not request visitation, but began paying support in October 2010, and continued paying consistently, through wage garnishment, almost

206 Cal.Rptr.3d 535

every month thereafter, although he never provided A.B. with health insurance.

Sometime in 2011, when Scott tried, unsuccessfully, to visit Michaela, Michaela's brother suggested that he seek court authorization to visit A.B. Scott went to family court and obtained the necessary paperwork to set up visitation, but did not take any further action after being told it would cost $400 to file the forms. Scott attempted to visit Michaela again in 2012, but she was not home.

In April 2013, Michaela began dating John O. Within a few months, John became involved in A.B.'s care and he began providing financial support for her in October 2013. A.B. called John “Daddy” and became very bonded to him. In the fall of 2014, Michaela moved in with John and they thereafter married.

At about the same time, Michaela had a “falling out” with her family. In October 2014, Scott sent a letter to Michaela, inquiring about A.B. and explaining that he planned to seek visitation through the court by A.B.'s fifth birthday (in November 2014). Shortly thereafter, Michaela's mother contacted Scott.

In late October 2014, Scott initiated a family court proceeding to obtain visitation. He acknowledged that he did not know A.B. and had only seen her a few times since her birth, but emphasized his self-improvement, stating that although he “use[d] to have a drinking problem ...”, he was now sober and had worked on becoming “a more responsible and more reliable [f]ather.” In

2 Cal.App.5th 917

his visitation request, Scott noted his relationship with Michaela's family and suggested starting visitation at Michaela's mother's home. Michaela called Scott after seeing the visitation request, and they had a lengthy conversation. Scott primarily discussed Michaela's mother, stating that she wanted to see A.B. again, he believed seeing her would be in A.B.'s best interests, and he wanted to visit with A.B. at her house.

Michaela and Scott participated in mediation to address Scott's visitation request. Based on their agreement, the family court ordered a therapist to oversee A.B.'s introduction to Scott and subsequent visitation. The therapist met individually with A.B., Scott, and Michaela and held conjoint sessions with Scott and A.B. in February and March 2015, although Scott did not take full advantage of the authorized visitation. Scott tried to develop a relationship with A.B., but they had limited interaction during the therapy sessions. At the second session, Scott played his guitar and A.B. hugged him when the session was over.

The conjoint therapy sessions proceeded “on a reasonable basis,” but ended in March 2015, when John petitioned to terminate Scott's parental rights so that he could adopt A.B.2 In response to John's petition to terminate Scott's rights, a social worker scheduled interviews with A.B.'s family. Scott was hesitant to meet, and the social worker had to contact him four to five times to set up his interview, which was unusual for a parent facing termination of parental rights. Moreover, at Scott's request, Michaela's mother and stepfather were included in his interview.3 In her report, the social worker recommended that Scott's parental rights not be terminated, based on her conclusion that he neither abandoned nor intended to abandon A.B.

206 Cal.Rptr.3d 536

Despite her earlier recommendation, the social worker testified at the hearing on John's petition that Scott's five-year absence deprived A.B. of stability and that John had provided A.B. with stability and continuity of care during the preceding two years. The social worker also acknowledged that the timing of the falling out between Michaela and her mother and Scott's request for visitation “was likely not to be coincidental.”

Michaela and Scott presented conflicting testimony at the hearing as to Scott's attempts to initiate contact with A.B. between 2010 and 2014. Scott introduced evidence (including testimony from Michaela's family members)

2 Cal.App.5th 918

that he sent Michaela several letters between 2009 and 2014, but Michaela testified she never received any letters from him.4

Similarly, Scott testified that Michaela started blocking his telephone calls in 2012 and introduced testimony from Michaela's family that he had called Michaela several times asking to see A.B., but Michaela had ignored his messages. By contrast, Michaela testified that Scott had called her periodically through 2011 but never requested visitation with A.B., and she had not returned his calls because she did not want to give him false hope regarding their relationship. Michaela admitted that she changed her phone number in 2012, but retained voice mail for her old number (which she checked weekly), until late summer of 2013.

After the close of evidence, the court noted the absence of evidence as to the cause of the “huge falling out” between Michaela and her family, but indicated that its focus was on Scott and his actions with respect to A.B. It ruled in relevant part that: (1) Michaela's testimony as to Scott's efforts to establish contact was much more credible than that of her family members; (2) Scott was aware of the family court and its procedures but made no meaningful attempt to request visitation until 2014; (3) when Scott first sought visitation at that time, he did not emphasize that Michaela had kept him away from A.B., but instead focused on his personal struggles, which suggested that he was not...

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    ...on DPSS’s failure to comply with the inquiry and notice requirements of ICWA and California law. DPSS relies on Adoption of A.B. (2016) 2 Cal.App.5th 912, 926, 206 Cal.Rptr.3d 531 [appellant seeking reversal for lack of proper ICWA notice must show reasonable probability of a different resu......
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    ...the entire record to determine whether there is substantial evidence to support the trial court’s findings. ( Adoption of A.B. (2016) 2 Cal.App.5th 912, 922, 206 Cal.Rptr.3d 531 ; Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010, 79 Cal.Rptr.3d 743.)2 261 Cal.Rptr.3d 402 II. The Evi......
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61 cases
  • L. A. Cnty. Dep't of Children & Family Servs. v. Priscilla S. (In re Ezequiel G.), B314432
    • United States
    • California Court of Appeals
    • July 29, 2022
    ...[four months "may not seem a long period of time to an adult, [but] it can be a lifetime to a young child"]; Adoption of A.B. (2016) 2 Cal.App.5th 912, 924, 206 Cal.Rptr.3d 531 ["childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required mus......
  • L. A. Cnty. Dep't of Children & Family Servs. v. Priscilla S. (In re Ezequiel G.), B314432
    • United States
    • California Court of Appeals
    • July 29, 2022
    ...[four months "may not seem a long period of time to an adult, [but] it can be a lifetime to a young child"]; Adoption of A.B. (2016) 2 Cal.App.5th 912, 924 ["childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone......
  • San Diego Cnty. Health & Human Servs. Agency v. A.J. (In re A.G.), D071620
    • United States
    • California Court of Appeals
    • June 16, 2017
    ...1 Cal.Rptr.3d 432, 71 P.3d 787 [harmless error analysis applies to failure to appoint separate counsel for siblings]; In re A.B. (2016) 2 Cal.App.5th 912, 927, 206 Cal.Rptr.3d 531 [ICWA notice errors were harmless where Indian tribe had actual notice]; In re Michael G . (2012) 203 Cal.App.4......
  • Riverside Cnty. Dep't of Pub. Soc. Servs. v. S.A. (In re N.G.), E070338
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