T. M. R., In re

• Decision Date: 11 September 1974
• Citation: 41 Cal.App.3d 694,116 Cal.Rptr. 292
• Court: California Court of Appeals Court of Appeals
• Parties: In re T.M.R. and E. R., minors. Frances PORTER, Division Chief, Alameda County Human Resources Agency, Plaintiff and Respondent, v. SANDRA R., Defendant and Appellant. Civ. 33706.

Page 292

116 Cal.Rptr. 292

41 Cal.App.3d 694

In re T.M.R. and E. R., minors.

Frances PORTER, Division Chief, Alameda County Human Resources Agency, Plaintiff and Respondent, v. SANDRA R., Defendant and Appellant.

Civ. 33706.

Court of Appeal, First District, Division 2, California.

Sept. 11, 1974.

Hearing Denied Nov. 8, 1974.

Marjorie Gelb, Janice E. Cooper, Legal Aid Society of Alameda County, Oakland, for defendant and appellant.

Richard J. Moore, County Counsel, Charles L. Harrington, and Paul M. Loya, Deputy County Counsels, County of Alameda, Oakland, for plaintiff and respondent.

Charles C. Marson, Joseph Remcho, American Civil Liberties Union Foundation of Northern California, Inc., Alice Daniel, San Francisco, for amicus curiae.

ROUSE, Associate Justice.

Sandra R., the mother of two minor children, appeals from an order declaring them free from the custody and control of their parents and available for adoption.

Her appeal is taken upon an agreed statement; therefore, we shall discuss only those facts which are pertinent to the issues raised on appeal.

The trial court's findings and conclusions of law reveal that the order which is the subject of this appeal was based upon three grounds: (1) Sandra R. abandoned her children because she made only 'token' attempts to communicate with them at all times after they were made dependents of the juvenile court; (2) Mrs. R. neglected her children for more than one year preceding the commencement of the instant action; and (3) since Mrs. R. had been convicted of possession of marijuana and had been sentenced to a term of up to five years, she could not provide her children with a normal home during this five-year period.

Defendant challenges each of the court's findings and contends that there is no valid basis for the order depriving her of custody and control over her children.

Mrs. R. first attacks the finding that she abandoned her children because she made only 'token' attempts to communicate with them after they were made dependents of the juvenile court.

Subdivision (a) of section 232 of the Civil Code ¹ provides, in part, that a minor may be declared free from the custody and control of a parent if he is a person 'Who . . . has been left by both of his parents or his sole parent in the care and custody of another without any provision for his support, ² or without communication from such parent or parents, for a period of six months with the intent on the part of such parent or parents to abandon such person. Such . . . failure to provide, or failure to communicate for a period of six months shall be presumptive evidence of the intent to abandon. . . . If in the opinion of the court the evidence indicates that such parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned . . ..'

In the instant case, the parties' agreed statement shows that there was uncontradicted evidence, consisting of the testimony of the children's foster mother, that at all times during the period when she had custody of defendant's two children (March 1970 until the date of trial) defendant wrote to the children and to the foster mother at least twice a month.

Sporadic efforts to communicate or communications which took place only when legal action was threatened may properly be found to be token only. Thus, in Adoption of Oukes (1971) 14 Cal.App.3d 459, 466--467, 92 Cal.Rptr. 390, a finding that the communications were merely token was upheld where the mother communicated with her children only three times during a period of one year and did so only because she was threatened with legal action.

In the case at bar, however, defendant communicated with her children on a frequent, regular and continuing basis, commencing such communications immediately after she was deprived of their custody and long prior to the commencement of the instant action. Since defendant was incarcerated during the period when she wrote to her children twice a month, it is obvious that she was utilizing the only means of communication available to her. Plaintiff concedes this to be the case. However, plaintiff makes some attempt to argue that since defendant's children were both so young that they had not yet learned to read, they would not have been able to understand the significance of a written communication. It follows, according to plaintiff, that it would be reasonable to assume that defendant wrote to her children only for her own purposes, 'such as the salving of her own conscience.' Plaintiff also argues that it is of even greater significance that during the 12-day period from July 1 through July 12, 1972, when defendant was on parole, she did not attempt to communicate with her children.

Plaintiff's position is not persuasive. Here, the uncontradicted evidence shows that during the entire period when she was separated from her children due to her incarceration, defendant utilized the only means of communication available to her by writing to them twice a month. Although not contained in the agreed statement of facts, there is a representation in the record that her letters frequently contained pictures suitable for young children, and that she also sent them birthday and Christmas cards. The fact that defendant's children were themselves unable to read her letters is of no particular importance, since their foster mother was able to read the letters aloud to them. It seems equally certain that although of tender years, the children were able to appreciate the significance of their mother's continuing attempts to keep in touch with them and thereby express her affection for them.

To characterize defendant's continuing communications to her children as merely 'token' would be to engage in pure surmise or speculation. As pointed out in Shively v. Eureka Tellurium G. Min. Co. (1907) 5 Cal.App. 236, 245--246, 89 P. 1073, 1077, 'Surmise is not evidence, and something more than suspicion is required as the basis for judicial action.'

We find little significance in the fact that defendant did not contact her children during the 12-day period when she was on parole, since it is settled that acts of a temporary nature are not sufficient upon which to base a finding of abandonment. (In re Salazar (1962) 205 Cal.App.2d 102, 107, 22 Cal.Rptr. 770.) In that connection we note that Mrs. R. testified she had 'walked away' from jail shortly after receiving the instant petition to have her children removed permanently; that she did not have an attorney at that time and was terrified that she would lose her children. Further, she testified that she never had any intent to abandon her children. She admitted that she had made no attempts to contact her children during the twelve-day period when she was not incarcerated, although she had opportunities to do so. However, she stated that she intended to contact her children after she had a place of her own and had settled down.

Under the circumstances here present, we conclude that there is no evidentiary support for the trial court's finding that defendant abandoned her children by failing to communicate with them after she was deprived of their custody.

We turn next to the trial court's finding that defendant neglected her children for more than one year preceding the commencement of the instant action. In view of the undisputed evidence that defendant was incarcerated during the one-year period immediately preceding the commencement of this action and nevertheless wrote to her children twice a month, it is difficult to identify any real basis for a finding of neglect. However, plaintiff reasons that the children themselves provided evidence of defendant's neglect, in that defendant's daughter had difficulty in using a knife and fork and defendant's son wet his bed and defecated in his pants on occasion and also stole money from his foster mother despite having been told not to do so. Plaintiff argues that the problems of defendant's children must be attributed to her neglect because '(b)y commission of crimes, (defendant) has not only assured her children of the deprivation of her emotional stimulus and outward love, but has guaranteed total deprivation of all necessary stimuli since she has caused her own absence from her children.'

Subdivision (b) of section 232 of the Civil Code provides that a minor may be declared free from the custody and control of a parent if he is a person 'Who has been cruelly treated or neglected by either or both of his parents, if such person has been a dependent child of the juvenile court, and such parent or parents deprived of his custody for the period of one year prior to the filing of a petition praying that he be declared free from the custody and control of such cruel or neglectful parent or parents.'

It is evident that subdivision (b) was intended to apply only in a situation where a child was made a dependent of the juvenile court because he was cruelly treated or neglected by his parents. Obviously no such situation exists in the instant case, since defendant's children were made dependent children of the juvenile court under section 600, subdivision (a), of the Welfare and Institutions Code, simply because there was no one to care for them when their parents were arrested. The record contains no evidence of cruelty or neglect on the part of defendant before she was deprived of custody of her children. In fact, the record contains evidence that she was a good and loving mother who gave excellent attention and supervision to her children.

Even assuming that subdivision (b) is broader in application than its wording would appear to indicate, we cannot agree with plaintiff's suggestion that defendant's children became neglected children after defendant was incarcerated and unable to be with them in person. The question of neglect, within the meaning of subdivision (b), is rebutted by leaving the child in an environment...