Taylor T. v. Anthony N. (In re Aubrey T.)
| Decision Date | 23 March 2020 |
| Docket Number | B296810 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE AUBREY T., a Person Coming Under the Juvenile Court Law. Taylor T. et al., Respondents, v. Anthony N., Appellant. |
L. Ernestine Fields, Sherman Oaks, for Aubrey T.
Pamela Rae Tripp, for Appellant Anthony N.
Law Offices of Vincent W. Davis, Vincent W. Davis, and Stephanie M. Davis, Arcadia, for Respondents Shirley T. and Ernest T.
Taylor T., in pro. per., for Respondent Taylor T.
Anthony N., the biological father of minor Aubrey T., appeals from the juvenile court’s judgment granting a petition to terminate Anthony’s paternal rights and declare Aubrey free for adoption by her maternal great-grandparents. On appeal, Anthony argues the evidence was insufficient to support the juvenile court’s finding that he abandoned Aubrey within the meaning of Family Code section 7822. Anthony also asserts the juvenile court acted in excess of its jurisdiction by adjudicating the petition under Family Code section 7822 when the petition originally was filed under a different statutory provision. For the reasons set forth below, we reverse.
Anthony and Taylor T. are the biological parents of Aubrey, a girl born in July 2011. Prior to Aubrey’s birth, Anthony and Taylor had been in an on-again-off-again relationship for about four years. When Taylor was four months pregnant with Aubrey, she and Anthony began living together in Riverside; however, Taylor moved out shortly before the birth due to problems in their relationship. At the time of the birth, Taylor was staying with Aubrey’s maternal great-grandparents, Shirley and Ernest T., in Long Beach while Anthony continued to live in Riverside. Anthony was present at Aubrey’s birth, but he was not named as the child’s father on the birth certificate.
When Aubrey was a few weeks old, Taylor and the baby moved in with Anthony at his home in Riverside. In February 2012, when Aubrey was six months old, Taylor and Anthony got married. Over the next two and a half years, Taylor and Aubrey continued living with Anthony, although there were periods of time when Taylor took Aubrey with her to stay with Shirley and Ernest because she and Anthony were having marital problems. During the time that Taylor and Aubrey resided with Anthony, he generally provided them with financial support and helped Taylor with the day-to-day tasks of caring for their daughter. According to Taylor, however, Anthony was often absent from the home because he had a serious alcohol and drug abuse problem. There were also occasions when Anthony committed acts of domestic violence against Taylor.
In November 2014, when Aubrey was three years old, Anthony and Taylor separated. Around that time, Taylor and Aubrey moved in with Shirley and Ernest. Taylor also obtained a temporary restraining order (TRO) against Anthony that precluded him from having any contact with her or Aubrey. By early 2015, the TRO had been lifted, and Taylor and Anthony began communicating again via text and email. Taylor also allowed Anthony to have some visits with Aubrey outside the maternal great-grandparents’ home. Once Aubrey began living with Shirley and Ernest in late 2014, Anthony did not have any direct communication with them. Instead, all of Anthony’s contact with Aubrey was facilitated by Taylor.
For a three-month period in 2015, Taylor’s whereabouts were unknown. In November 2015, after learning from a mutual friend that Taylor was missing, Anthony went to the maternal great-grandparents’ home accompanied by a police officer. While Anthony indicated that his intent in going to the home was to visit Aubrey, Shirley and Ernest feared that Anthony was there to take custody of the child. Shirley told the officer that Anthony was not named as Aubrey’s father on her birth certificate and that he would need to get a paternity test to prove he was her father. Anthony left the home that day without seeing Aubrey.
On December 15, 2015, Anthony filed a petition for dissolution of the marriage in which he sought custody of Aubrey. After filing the petition, Anthony and his attorney met with Taylor to discuss issues of child custody and support. According to Anthony, he and Taylor agreed to a 50/50 custody arrangement for Aubrey at that meeting. Taylor, however, denied that any such agreement was reached. On December 26, 2015, Anthony’s attorney sent Taylor a proposed stipulated judgment regarding the terms of the parties’ purported agreement, but did not receive any response.
During this time period, Taylor and Anthony continued to exchange text messages in which he repeatedly asked about Aubrey and when he could spend time with her. He also warned Taylor that he would be going to court if she did not sign the paperwork from his attorney. In early 2016, Taylor told Anthony in a series of text messages that Shirley and Ernest had "flipped out and threatened" her when they learned Aubrey was communicating with him. They also had expressed to Taylor that, if she was on Anthony’s side, they would "cut [her] out of the equation and do everything" they could to keep him away. In response, Anthony assured Taylor that her family would not be able to say anything once they "were done with [the] paperwork." In January 2016, Taylor and Anthony briefly resumed their sexual relationship. However, when Taylor discovered that Anthony was seeing another woman at the same time, their relationship rapidly deteriorated. Shortly after this discovery, Taylor ceased all communication with Anthony and refused to respond to any of his text messages about Aubrey. On June 7, 2016, Anthony filed a request to enter a default judgment in the marital dissolution action. After receiving notice of the request, Taylor retained an attorney to represent her in the case. The parties then filed a stipulation to set aside the request for a default. On August 31, 2016, Taylor filed a response to the petition in which she requested sole legal and physical custody of Aubrey with supervised visitation for Anthony. The parties were ordered to attend a mediation on September 2, 2016 to address child custody and visitation, but Taylor did not appear.
On September 7, 2016, Anthony filed a request for an order to establish his paternity and for joint legal and physical custody of Aubrey. Taylor opposed the request. In a declaration signed on October 3, 2016, Taylor stated that Anthony had not provided any financial support for Aubrey or made any serious attempts to visit the child for the past two years.
On July 18, 2016, while the marital dissolution action was pending in family court, Shirley and Ernest filed a petition to be appointed the guardians of Aubrey in probate court. The petition alleged that Anthony had a history of domestic violence and drug and alcohol abuse, and that he had threatened to harm both Taylor and Aubrey if Taylor took any legal action against him. It also alleged that Aubrey used to spend weeks under the maternal great-grandparents’ care while Anthony and Taylor were dealing with marital issues, and that Aubrey had been in their custody on a full-time basis since about October 2014. The petition was accompanied by a written consent to the proposed guardianship signed by Taylor. On September 14, 2006, Shirley and Ernest also filed an ex parte application for temporary guardianship of Aubrey on the ground that Anthony had not made any attempt to visit the child or to financially support her for the past two years.
Anthony objected to the petition and ex parte application, and requested that the action be transferred to the family court to decide all issues related to the custody of Aubrey. On September 14, 2016, the probate court denied the ex parte application and ordered the matter suspended pending the family law proceeding.
On October 6, 2016, Shirley and Ernest filed a motion to join the family law proceeding. They also filed a request for an order declaring them to be Aubrey’s de facto parents, and Ernest to be the child’s presumed father. In addition, Shirley and Ernest asked the family court to grant them sole legal and physical custody of Aubrey.
On February 7, 2017, the family court held a hearing on Anthony’s request for an order for joint legal and physical custody. At the hearing, the court ordered the parties to meet and confer about a possible step-up proposal for custody and visitation. Although Anthony’s counsel repeatedly attempted to schedule the meet-and-confer conference, Taylor’s counsel failed to timely respond. On February 28, 2017, paternity test results confirmed that Anthony was Aubrey’s biological father. On April 21, 2017, Anthony filed an ex parte application seeking temporary physical custody of Aubrey pending resolution of a step-up schedule. Anthony also requested the appointment of minor’s counsel for Aubrey given the highly contested nature of the custody and visitation issues.
On April 21, 2017, the same day that Anthony filed his ex parte request for temporary custody of Aubrey in family court, Taylor filed a petition to determine Anthony’s parental rights pursuant to Family Code 1 section 7662 in juvenile court. Among other allegations, the petition asserted that Taylor and Anthony did not attempt to marry each other before or after Aubrey’s birth; that Anthony did not openly hold out Aubrey as his child and receive her into his home; and that Anthony failed to provide any child support for Aubrey and to communicate with her. The petition sought to terminate Anthony’s parental rights so that Aubrey could be free...
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