V. A. v. M.D. (In re M.D.)

• Decision Date: 11 April 2022
• Docket Number: E077523
• Parties: In re M.D. et al., Minors. v. V. A., Petitioner and Respondent, v. M.D., Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

In re M.D. et al., Minors.

V. A., Petitioner and Respondent, v. M.D., Objector and Appellant.

E077523

California Court of Appeals, Fourth District, Second Division

April 11, 2022

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No FFCSS1900034 Aruna P. Rodrigo, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)

Law Offices of Zulu Ali and Associates and Zulu A. Ali for Objector and Appellant.

The Haynes Law Firm and Crista Haynes for Petitioner and Respondent.

OPINION

MILLER J.

Objector and appellant M.D. appeals a judgment terminating his parental rights to his children on the basis of abandonment under Family Code^[1] section 7822. Father contends the evidence was insufficient to establish that he intended to abandon the children. We affirm the judgment.

STATEMENT OF THE CASE

Father and T.O. (Mother) are the parents of M.D., Jr., (a boy, born November 2012; hereafter M.D.) and D.D. (a boy, born June 2014; collectively, the children).

On September 13, 2019, petitioner and respondent V.A (Stepfather) petitioned to terminate Father's parental rights as to the children. On September 16, 2019, the trial court filed a "Citation-Freedom From Parental Custody and Control" for each child, notifying Father to appear before the court on September 20, 2019, for a hearing to terminate Father's parental rights.

On September 20, 2019, the court continued the hearing to November 8, 2019. The hearing continued again to February 21 2020.

At the hearing on February 21, 2020, the court found the allegations "sufficient and true" and granted Stepfather's petitions to terminate Father's parental rights as to the children.

On March 16, 2020, Father filed a motion to set aside the judgment. A hearing was scheduled for April 24, 2020. The hearing on Father's motion was continued to June 26 2020.

On June 19, 2020, Stepfather filed an opposition to Father's motion to set aside the judgment.

At the hearing on Father's motion on June 26, 2020, after hearing Father's testimony and argument by counsel for both parties, the trial court took the matter under submission.

On June 30, 2020, the trial court set aside the order granting Stepfather's petitions to terminate Father's parental rights to the children based on improper notice.

On August 28, 2020, a proof of service declaring that Father was served with Stepfather's petitions to terminate the parental rights of Father as to the children was filed. On September 11, Father filed answers to Stepfather's petitions and requested an evidentiary hearing.

On May 25, 2021, the trial court held a hearing on Stepfather's petitions. Mother, Father and Stepfather testified.

On July 6, 2021, the trial court granted Stepfather's petitions to free the children from Father's custody and control; a statement of decision was filed the same date.

On August 4, 2021, Father filed his notice of appeal.

DISCUSSION

Father contends that the trial court erred in granting Stepfather's petition to free the children from the custody and control of Father. For the reasons set forth post, we find the trial court properly granted Stepfather's petition and affirm the court's order.

Under section 7822, a proceeding may be commenced to have a child under the age of 18 years old declared free from the custody and control of one parent if the child has been left "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." (§ 7822, subd. (a)(3).)

" '" 'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.'" [Citations.]' [Citation.] Accordingly, the statute contemplates that abandonment is established only when there is a physical act-leaving the child for the prescribed period of time- combined with an intent to abandon, which may be presumed from a lack of communication or support." (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754; § 7822, subd. (b) ["failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon"].) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. (§ 7822, subd. (b) ["If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent"]; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. (Id. at p. 1212.) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.)

In this case, on July 6, 2021, in its statement of decision after a hearing on Stepfather's petition for freedom from parental control and custody, the trial court made the following findings:

Mother and Father are the biological parents of the children. Mother and Stepfather are married. When Mother and Father separated in early 2016, they informally agreed for Father to visit the children on alternating weekends. Since that time, Father's visits with the children were inconsistent. Mother made efforts to contact Father and "even offered to drop the children off at [paternal grandfather's] home. Beginning early 2018 [Father's] visits were less frequent and by [Father's] own admission he stopped seeing the children in late 2018."

In mid-2019, Father started to demand regular visits with the children and became aggressive in his text messages to Mother. Mother admitted to blocking Father on her phone about June of 2019.

The court found that Father was less credible when he testified that "he was prevented by [Mother] from visiting, supporting and communicating with the children and that he was unaware of the children's whereabouts until the current petition was filed. It was undisputed that [Father's] step-mother, [C.D.], and [Mother have] a positive relationship and [C.D.] regularly visits with the children twice a month. No evidence was presented that [Father] visited the children nor communicated with them while they were visiting with [C.D.]. It was further undisputed that [Mother] communicates with [Father's] current spouse . . . and paternal aunt(s)."

The court found Mother's testimony to be credible that Father was aware of the children's residence in the City of Ontario since September 2018, and that Mother and children have remained there since that time. The court found that Father "did not make any meaningful efforts to communicate with the children since early 2019."

Moreover, the trial court found that although Father agreed to provide $200 every month to Mother for the care of the children, he made no payments after November of 2017. After then, Father did not provide any support-monetary, food, clothing, medical-for the children.

Therefore, under section 7822, the court found "by clear and convincing evidence that [Father] has not only left [the children] in the care and custody of [Mother] for a period of in excess of one year without any provision for their support, but also failed to communicate, with the intent to abandon the children."

The court went on to note that Father did not overcome the presumption under section 7822, subdivision (b), "that his failure to provide support and failure to communicate is presumptive evidence of his intent to abandon the children. The court is not persuaded nor find[s] it relevant that [Father] did not intend to abandon the children forever." Furthermore, the court found that Father's "efforts to communicate by send text messages to [Mother] (even if determined to be credible) to be only token efforts to communicate with the children."

Thereafter, the trial court ordered the children to be free from the custody and control of Father and granted the section 7822 petition.

On appeal, Father contends that the "trial court's decision granting the petition to Free Minor From Custody and Control on the basis of intent to abandon must be reversed because it is not supported by substantial evidence in the record." We disagree.

We apply a substantial evidence standard of review to a trial court's finding under section 7822. (In re Amy A., supra, 132 Cal.App.4th at p. 67.) In Conservatorship of O.B. (2020) 9 Cal.5th 989, our Supreme Court held an appellate court applying the substantial evidence standard of review must account for the standard of proof required in the underlying proceeding when determining whether a finding is supported by the evidence. (Id. at pp. 995-996.) Thus, "[w]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Id. at p 1011.) We do not consider the credibility of the witnesses nor reweigh the evidence. (Id. at p. 1008; In re Lana S. (2012) 207 Cal.App.4th 94, 103 (Lana S.).) We must affirm an order that is supported by substantial evidence even if other evidence, or other inferences from the evidence, would have supported a contrary finding. (In re Manuel G. (1997) 16 Cal.4th 805, 823.) All evidence most favorable to the respondent must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of...