M.C. v. R.C. (In re A.C.)
| Decision Date | 10 April 2019 |
| Docket Number | E071244 |
| Parties | In re A.C., a Minor. M.C. et al., Petitioners and Appellants, v. R.C., Objector and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAPPEAL from the Superior Court of Riverside County. Dale R. Wells, Judge. Affirmed.
John L. Dodd & Associates, John L. Dodd for Petitioners and Appellants.
Lauren K. Johnson, under appointment by the Court of Appeal, for Objector and Respondent.
In this case, a child's maternal grandparents sought to terminate the parental rights of their granddaughter's sole living biological parent, her father, by demonstrating, among other things, his intent to abandon his daughter. The trial court denied their petition. On appeal, the grandparents ask us to hold that the statutory presumption of intent to abandon that they established did not merely discharge their burden of producing evidence—meaning simply that it would carry their burden if unrebutted—but also shifted the ultimate burden to the father to prove he did not intend to abandon. They ask us to reject In re Rose G. (1976) 57 Cal.App.3d 406 (Rose G.) insofar as it held that the presumption is only one of producing evidence. We agree with Rose G. that the presumption affects only the burden of producing evidence. Because the grandparents' evidence did not compel a finding that the father intended to abandon his daughter, we affirm the judgment.
A.C. was born in January 2008. Almost immediately, appellants, A.C.'s maternal grandmother and stepgrandfather (the grandparents), began caring for her: A.C. first spent the night at the grandparents' home when she was five days old, and the grandparents have been her guardians since 2009. A.C.'s mother, who was struggling with substance abuse, told the grandparents in December 2008 that she could no longer care for A.C. A.C.'s mother died in 2014.
When A.C. was born, it was not clear who her father was. In 2007, while pregnant, A.C.'s mother told R.C. that the child was his. Later, while still pregnant, the mother told R.C. that the child was not his. R.C. then immediately moved from Blythe, where the mother and R.C. were living separately, to San Diego. When A.C. was born,her birth certificate listed only her mother. A couple of years later, R.C.'s mother saw a pamphlet for the Blythe Blue Grass Festival. The pamphlet contained a picture of a baby that looked "just like" her grandchildren. After learning from others that the baby was A.C., R.C.'s mother told R.C. to get a paternity test done. R.C. did so in 2010 and found out that he was in fact A.C.'s biological father.1
From 2010 to 2015, R.C. visited A.C. For the first two years, R.C. would travel to Blythe from San Diego. In 2012, R.C. lost his job and moved back to Blythe. Following the death of A.C.'s mother in 2014, R.C.'s "recreational" drug use became a substance abuse problem. The substance abuse, in addition to not having access to transportation to visit A.C. and the fact that the grandmother "made it clear" that she did not want R.C. to be around A.C., meant that R.C. only visited or contacted A.C. once in an approximately two-year span beginning in summer 2015.
R.C. completed a treatment program in April 2017 and has remained sober.
On October 6, 2017, the grandparents filed a petition under Family Code section 7802 to free A.C. from parental custody and control, alleging that R.C. had abandoned her.2 The grandparents filed an adoption request the same day. A probation officer's report, filed in May 2018, recommended that the petition be granted.
In July 2018, the trial court heard testimony from R.C., R.C.'s father, and the grandmother. The grandmother testified that, among other things, R.C. has never made any effort to be a father to A.C. R.C. testified that, regarding his lack of contact during the two-year period from 2015 to 2017, the grandmother "took the visitations away," and that he stayed away out of respect and so as to not make matters worse. During this time, R.C. wanted to "look for" A.C. "[e]very day" but, as he stated, did not want A.C. "to see a side of me that I couldn't stand." R.C. stated that, since completing his drug abuse treatment program, he has had a "good relationship" with A.C. R.C.'s father testified that he has seen positive changes in R.C. since R.C. became sober, and that R.C. "understands that he's got a lot of making up to do."
The trial court denied the petition. The trial court stated that the grandparents established the statutory presumption of intent to abandon pursuant to section 7822, subdivision (a)(2), but they ultimately failed to prove such intent by clear and convincing evidence.
The grandparents sought to terminate R.C.'s parental rights under section 7802, which authorizes a proceeding "for the purpose of having a minor child declared free from the custody and control of either or both parents." One effect of such a declaration is that the child may be adopted without the consent of a biological parent. (§§ 8606, subd. (a), 8512.)
The Family Code lists several different grounds for the declaration, and the one at issue here is provided by section 7822, subdivision (a)(2), which allows the termination proceeding if "[t]he child has been [(1)] left by . . . the sole parent in the care and custody of another person for a period of six months [(2)] without any provision for the child's support, or without communication from the parent . . . [and (3)] with the intent on the part of the parent . . . to abandon the child."
A trial court must make findings under section 7822 based on clear and convincing evidence. (§ 7821.) This is because "[i]n parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing . . . interest favoring that standard is comparatively slight." (Santosky v. Kramer (1982) 455 U.S. 745, 758; see also id. at p. 761 [].)
The principal issue in this appeal concerns the "intent on the part of the parent . . . to abandon the child" requirement of section 7822, subdivision (a)(2). As to that requirement, the law provides that "failure to . . . provide support, or failure to communicate is presumptive evidence of the intent to abandon." (§ 7822, subd. (b).) "'The questions of abandonment and of intent . . . , including the issue of whether the statutory presumption has been overcome satisfactorily, are questions of fact for the resolution of the trial court.'" (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 506.)
Where, as here, "the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals," "the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (Ibid.) "The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment." (Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) "'"All conflicts, therefore, must be resolved in favor of therespondent."'" (Ibid.) To the extent an appellant contends that a trial court did not properly interpret the relevant statutes, however, such issues are reviewed de novo. (In re R.D. (2008) 163 Cal.App.4th 679, 684.)
The trial court found that the grandparents failed to establish by clear and convincing evidence that R.C. intended to abandon A.C. The grandparents contend that the trial court, in making this finding, misapplied the law in two ways. We conclude that neither was an error.
At the hearing on the grandparents' petition, the trial court found that the grandparents had made the showing required for the section 7822, subdivision (b) (section 7822(b)) presumption of intent to abandon, did not explicitly state that the presumption was rebutted, and nevertheless held that the grandparents failed to establish intent. The grandparents argue that this means that the trial court wrongly required them to offer additional evidence of intent even after finding that the presumption applied, because the court never found that R.C. rebutted the presumption. That is, the grandparents argue that once the court found that R.C.'s failure to provide support or communicate was "presumptive evidence of the intent to abandon" (§ 7822(b)) they carried their burden absent an express finding that the burden was rebutted.
We disagree with the inference that the grandparents draw from the record. A "fundamental principle of appellate procedure" is that "a trial court judgment is ordinarilypresumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error...
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