Minors. James J. v. & (In re E.M.)

• Decision Date: 05 August 2014
• Docket Number: D064955
• Citation: 175 Cal.Rptr.3d 711,228 Cal.App.4th 828
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE E.M. et al., Minors. James J. et al., Petitioners and Appellants, v. Christopher M., Objector and Respondent.

228 Cal.App.4th 828

175 Cal.Rptr.3d 711

IN RE E.M. et al., Minors.James J. et al., Petitioners and Appellants,

v.Christopher M., Objector and Respondent.

D064955

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

Filed August 5, 2014

See10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 312.

APPEAL from a judgment and orders of the Superior Court of San Diego County, Carolyn M. Caietti and Cynthia A. Bashant, Judges. Affirmed. (Super. Ct. No. JA58820)

Marcus Family Law Center, Erin K. Tomlinson, El Centro, and Ethan J. Marcus, San Diego, for Petitioners and Appellants.

Law Offices of Farah F. Azar and Farah F. Azar for Objector and Respondent.

Monica Vogelmann, San Diego, under appointment by the Court of Appeal, for Minors.

AARON, J.

James J. and Sarah J. appeal the denial of their petition to declare Sarah's three children free from the custody and control of the children's father, Christopher M. (Fam.Code, § 7822.) ¹ James and Sarah also contend that the court did not have jurisdiction to issue a temporary visitation order allowing Christopher to have supervised visitation with the children during the pendency, or upon dismissal, of the petition to terminate parental rights under section 7822. Finally, they contest the order directing them to pay Christopher's attorney fees. Christopher requests that we dismiss this appeal as frivolous and impose sanctions. We affirm the findings and orders of the court, and deny Christopher's request for sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

Sarah and Christopher married in 2006. Their three children were born in 2006, 2007 and 2011. Sarah and Christopher separated in July 2011, in part because of Christopher's drug use. A short time later, Sarah and the children moved into James's home. The children visited Christopher on weekends.

In December 2011, the children stayed with Christopher for a week while Sarah and James were on vacation in a foreign country. Christopher was drinking heavily during this time. In a series of e-mails to Sarah, he said that he was not fit to have the children in his care, that they would be better off without him, and that he would give Sarah full custody of the children. Sarah told Christopher that he needed to take a break from seeing the children.

Sarah filed for divorce in January 2012. Christopher agreed that Sarah would have sole physical and legal custody of the children, subject to his liberal and reasonable visitation rights, which were to be determined at Sarah's discretion. This agreement was embodied in the marital settlement agreement, which was incorporated into the judgment of dissolution of marriage. Christopher was ordered to pay child support in the amount of $4,913 a month beginning May 1, 2012.

Beginning in the spring of 2012, Sarah refused to communicate with Christopher. James told Christopher that he would have to be sober for 30 days before Sarah would consider allowing him to see the children. Christopher completed a detoxification program in June. In July, through her attorney, Sarah offered to allow Christopher one hour of supervised visitation per month once he successfully completed 90 days of sobriety. This schedule would continue for six months, after which Sarah would be willing to negotiate additional visitation for Christopher.

Sarah and James were married in September. In November, Christopher filed a request in the family court to modify custody, visitation and support orders or, in the alternative, to vacate the judgment of dissolution.

In January 2013, James and Sarah filed a petition to free the children from Christopher's custody and control, so that James could adopt the children (section 7822 petition). Their petition was filed under section 7822, subdivision (a)(3), which may apply when “[o]ne 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.” In a declaration, Sarah stated that Christopher had left his children in Sarah's sole custody and that he had had “no contact with the children since December 27, 2011 to the present nor any communication from the absent parent since February 14, 2012 (and only token attempts at communication prior to that date)” with the intent to abandon them. The petition further alleged that Christopher had not made any child support payments, other than token amounts, since May 1, 2012, and that any payments that he made to Sarah before that date had come from her share of community property income.

Christopher's request to modify custody and visitation orders was stayed pending final determination of the section 7822 proceedings. (§ 7807.) ² Pursuant to San Diego County Local Rule 5.1.2(C), the section 7822 proceedings were heard in the Juvenile Division of the San Diego County Superior Court, not in the Family Court. On March 8, 2013, Tina Jako, an adoptions social worker with the San Diego County Health and Human Services Agency (Agency), reported to the court that Sarah and James had not completed the necessary interviews for the stepparent adoption. The court ³ appointed counsel for the children and set a hearing date on the petition for April 19, 2013.⁴

On April 12, Jako informed the court that Sarah and James had not completed all of the necessary paperwork for the stepparent adoption and requested a continuance of the hearing date. At the request of minors' counsel, the court issued an order for weekly supervised visitation between Christopher and the children, conditioned on a showing that Christopher was clean and sober. The court ordered Sarah to cooperate with the intake process at the supervised visitation facility by April 19 so that Christopher's visitation with the children could begin. The court continued the hearing on the section 7822 petition to May 31.

Christopher submitted a clean drug test to the court. Sarah refused to cooperate with the intake and orientation for supervised visitation for Christopher. She also unsuccessfully sought to have minors' counsel removed from the case.

In May, Jako filed a report stating that she had been unable to complete her required investigation. Sarah and James had failed to complete the requirements for the stepparent adoption case and, as a consequence, Jako was unable to proceed.

Sarah filed a motion for reconsideration of the visitation order. She asserted that the court hearing the section 7822 petition lacked jurisdiction to make visitation orders. The court stayed its prior visitation order and ordered counsel to brief the issue.

After reviewing the parties' briefs and listening to argument, the court denied Sarah's motion. The court noted that the marital settlement agreement clearly contemplated that Christopher would have visitation with the children. Once the petitioners filed a section 7822 petition, the family court no longer had jurisdiction to make any visitation orders. However, section 7801 provides that statutes governing an action to free a child from a parent's custody and control are to be liberally construed. The court detailed Sarah and James's lack of cooperation with the social worker and noted that they had failed to complete the paperwork for the companion stepparent adoption case. In addition, the court observed that, at Sarah's request, the hearing on the section 7822 petition had been continued to September 27, to accommodate her pregnancy. According to the court, all of these factors had contributed to the delay in hearing the section 7822 petition, which by statute was to be held within 45 days of the filing of the petition. At the time of this hearing, it had been six months since the petition was filed. In addition, the court noted that minors' counsel was not requesting a change in legal or physical custody but rather, enforcement of the existing visitation order that granted “liberal, reasonable and flexible rights of visitation” to Christopher, although at Sarah's sole discretion.

The court stated, “Obviously, this is an interim order depending on the outcome of the trial. If the petitioner's request is granted, [the interim] order would go away, and if it's not granted, then I believe you would go back to family court and litigate there.” The court added that any current court-ordered visitation would not be used against petitioners in their attempt to show that Christopher had abandoned his children within the meaning of section 7822. The court modified its prior visitation order to delete the requirement that Sarah participate in the intake process at the visitation facility.

A trial on appellants' petition for freedom from custody and control was held on September 25, 27 and 30, 2013.⁵ The court admitted in evidence social worker Jako's section 7822 report, which included the visitation supervisor's reports of Christopher's interactions with the children during visits, and took judicial notice of the other reports that Jako had filed in the case. The court also admitted in evidence various exhibits, including the parties' financial records and e-mails, social media posts and letters.

Jako reported that as of September 24, 2013, Sarah and James had not participated in the required interviews, nor had they completed the paperwork that was required for stepparent adoption. Jako believed that the allegations of abandonment under section 7822 could not be sustained. Although Christopher had not visited his children from December 28, 2011 to January 7, 2013, Jako could not conclude that Christopher intended to abandon the children. According to Sarah, Christopher requested visitation and telephoned the children until March 2012. Christopher told Jako that he asked to visit the children every month and talked with them on the telephone regularly until mid- to late 2012. He hired an attorney in July 2012 and filed a motion for visitation in...