California
Appeals
Standard of Review

Standard of Review-Factual Findings-Appellate court applies substantial evidence standard to trial court’s findings under Family Code sec.7822Adoption of Allison C.

DISCUSSION

Substantial Evidence Supports the Court’s Order Declaring Allison Free from Father’s Parental Custody and Control

                        Father contends insufficient evidence supports the court’s findings (1) he left Allison in mother’s care and custody, (2) he did not support or communicate with her, and (3) he intended to abandon Allison.

                        Section 7800 et seq. governs proceedings to have a child declared free from a parent’s custody and control.  The purpose of such proceedings is to promote the child’s best interest “by providing the stability and security of an adoptive home.”  (§ 7800.)  The statute is to “be liberally construed to serve and protect the interests and welfare of the child.”  (§ 7801.)

                        Under section 7822, a court may declare a child free from a parent’s custody and control if the parent has abandoned the child.  Abandonment occurs when a “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.”[5]  (§ 7822, subd. (a), italics added.)  Thus, a section 7822 proceeding is appropriate where “three main elements” are met:  “(1) the child must have been left with another; (2) without provision for support or without communication from . . . his parent[] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done ‘with the intent on the part of such parent . . . to abandon [the child].’”  (In re Cattalini (1946) 72 Cal.App.2d 662, 665 (Cattalini).)  “The . . . failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon.  If the parent . . . ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .”  (§ 7822, subd. (b).)

                        An appellate court applies a substantial evidence standard of review to a trial court’s findings under section 7822.[6]  (Amy A., supra, 132 Cal.App.4th at p. 67.)  Although a trial court must make such findings based on clear and convincing evidence (§ 7821), this standard of proof “‘is for the guidance of the trial court only; on review, our function is limited to a determination whether substantial evidence exists to support the conclusions reached by the trial court in utilizing the appropriate standard.’”[7]  (In re B. J. B. (1986) 185 Cal.App.3d 1201, 1211.)  Under the substantial evidence standard of review, “‘[a]ll conflicts in the evidence must be resolved in favor of the respondents and all legitimate and reasonable inferences must be indulged in to uphold the judgment.’”  (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)  Abandonment and intent “‘are questions of fact for the trial judge . . . .  His decision, when supported by substantial evidence, is binding upon the reviewing court.  An appellate court is not empowered to disturb a decree adjudging that a minor is an abandoned child if the evidence is legally sufficient to support the finding of fact as to the abandonment [citations].’”  (Ibid.)  “The appellant has the burden of showing the finding or order is not supported by substantial evidence.”  (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [this burden of proof is applicable in dependency and other appeals].)

                        On appeal father contests the court’s findings on all three elements of the section 7822 determination of abandonment.  He first contends insufficient evidence supports the court’s finding he left Allison in mother’s care and custody for at least one year.  He argues the term “‘left’ connotes voluntary action” and therefore “abandonment does not occur when the child is taken from parental custody against the parent’s wishes,” relying on Amy A., supra, 132 Cal.App.4th 63.  While acknowledging he “was incarcerated at different time periods from 2001 through” 2007, father argues his incarceration was involuntary.  He further asserts mother left father and tried “at every turn to cut off any contact between Father and his daughter,” including by discontinuing Allison’s visits to father’s brother’s house, obtaining a restraining order against father, and persuading father’s parole officer to disallow visitation.  He concludes “petitioners failed to prove at trial that Father voluntarily allowed Mother to assume custody.”

                        In Amy A., the father argued “‘“actual desertion”’ is required” to show abandonment, and because the mother “was the one to physically move with [the child] to [another state], he [could not] have ‘left’ [the child] in [the mother’s] care and custody within the meaning of section 7822.”  (Amy A., supra, 132 Cal.App.4th at pp. 68, 69.)  The Court of Appeal disagreed, “conclud[ing] that a parent may be found to have ‘left’ a child in another person’s care and custody within the meaning of section 7822 even when the child moves away with the other parent.”  (Id. at p. 69.)  The appellate court explained that a “parent ‘leaves’ a child by ‘“voluntarily surrender[ing ]”’ the child to another person’s care and custody.”  (Ibid.)  “Case law consistently focuses on the voluntary nature of a parent’s abandonment of the parental role rather than on physical desertion by the parent.”  (Ibid.)

                        We thus consider whether father voluntarily surrendered Allison’s custody and care to mother.  We conclude substantial evidence supports the court’s finding he did just that.  In the summer of 2001 father, by his voluntary act of domestic violence, left Allison in mother’s care and custody.  Thereafter, he never sought to take parental responsibility for Allison’s care, and instead chose to let the child stay with mother.  In other words, he was content to leave to mother all real parental responsibility for Allison.  His actions underlying his incarcerations for domestic violence, burglary, and driving under the influence were voluntary, and in any case, “being incarcerated does not, in and of itself, provide a legal defense to abandonment of children.”  (In re Rose G. (1976) 57 Cal.App.3d 406, 424.)  Even when father was out of prison in 2003 and routinely visited Allison at his brother’s house, he did so secretly, rather than seeking custody or visitation rights.  Mother’s efforts to curtail father’s communication with Allison, while relevant to an assessment of whether father intended to abandon the child by noncommunication (an issue we discuss below), do not negate the reality he never sought to take custody or care of the child after mid-2001.  In sum, he voluntarily abdicated the parental role.  Thus, the court did not err by finding father left Allison in mother’s care and custody from 2003 to October 2006.

                        We next examine whether substantial evidence supports the court’s finding father failed to support Allison from September 2003 to December 2006.  Father testified he never paid “any child support for Allison,” but gave his brother “close to $800” in 2003 because they “had her on the weekends,” and brought the child toys, food and clothes when visiting her during that year.  He also testified that, at the time of the section 7822 hearing, he had saved “about $300” for Allison.

                        The court found that, even giving father credit for $1,100 in monetary support, this amount was “de minimis,” insufficient, and “token” for the period from March 2003 through October 2006 (the date of stepfather’s section 7822 petition), in light of the cost of “medical care, . . . food, clothing and shelter” for a child in Orange County.  The court recognized father’s ability to provide support was limited due to his incarceration but noted that if incarceration were an acceptable excuse for nonsupport, “a child could [conceivably] never be adopted.”  The court further noted a parent’s incarceration results from his or her own actions.

                        Substantial evidence supports the court’s finding father failed to support Allison from September 2003 through December 2006.  Other than the $300 father claimed to have saved for Allison, father provided her with no support after September 2003, i.e. a period of over three years; the statute requires only a one-year period of nonsupport.

                        Finally, father contests the court’s finding he intended to abandon Allison.  He first argues his nonsupport of Allison cannot serve as presumptive evidence he intended to abandon the child because mother “apparently” never obtained a support order and never asked him for “money or supplies” for Allison.  He argues “[f]ailure to contribute support in the absence of demand does not prove an intent to abandon,” quoting from In re George G. (1977) 68 Cal.App.3d 146, 159 (George G.), and “[e]vidence of a parent’s inability to pay support rebuts presumption of abandonment,” quoting Cattalini, supra, 72 Cal.App.2d at page 667.[8]  In response, stepfather relies on In re Randi D. (1989) 209 Cal.App.3d 624 (Randi D.), which stated:  “‘Although a parent’s failure to contribute to his child’s support absent demand does not necessarily show abandonment, such failure coupled with failure to communicate, may do so.’”  (Id. at p. 630.)  Similarly, “‘failure to pay for maintenance when no demand therefor has been made [citations], or no ability to provide is shown [citations], by itself, does not prove an intent to abandon.’”  (In re Baby Boy M. (1990) 221 Cal.App.3d 475, 482 (Baby Boy M.), italics added.)

                        Here, the court found father failed to communicate with Allison from September 2003 to December 2006.  The court explained that after 2003 father had no direct contact with Allison, failed to make adequate efforts to communicate by letters, and therefore had not bonded with her.  The court noted father’s incarceration had “removed him from contact with the child.”  As to father’s testimony he tried to send Allison cards and letters “[a]ll through her life,” the court was entitled to disbelieve or discount that testimony (and apparently did so, since it expressly found father made inadequate efforts to communicate by letters).  Finally, father failed to seek permission to contact Allison by telephone or mail in late 2005, despite the special parole condition entitling him to do so.

                        The court’s finding father failed to communicate with Allison from September 2003 to December 2006, coupled with its finding of nonsupport for the same period, are sufficient to show father intended to abandon her for that period.  Randi D. and Baby Boy M. support this conclusion and are more current than father’s cited cases, George G. and Cattalini.  Nor are George G. and Cattalini inconsistent with Randi D. and Baby Boy M., as they state only that nonsupport, absent demand or ability to pay, cannot, standing alone, prove intent to abandon or trigger the presumption of intent to abandon.  (George G., supra, 68 Cal.App.3d at p. 159; Cattalini, supra, 72 Cal.App.2d at p. 667.)  Furthermore, George G. and Cattalini are factually distinguishable from the case at hand.  In George G., the parents voluntarily allowed the child to stay with licensed foster parents so the foster parents could support the child with AFDC funds foregone by the mother, and the parents continued to visit the child.  (George G., supra, 68 Cal.App.3d at pp. 152-154.)  In Cattalini, the father was expressly requested by the mother and her husband not to support the children with money or gifts, and there was evidence the father maintained communication with the children, and father “kept insisting that he had no intention of giving up his children.”  (Cattalini, supra, 72 Cal.App.2d at pp. 666-668.)  Moreover, Cattalini, decided in 1946, stated, contrary to the legislative mandate in current section 7800 that the interests of the child be served and protected:  “[W]here absolute severance of the relation of parent and child is sought ‘the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation,’ and ‘[e]very intendment should have been in favor of the claim’ of the parent under the evidence, and ‘if the statute was open to construction and interpretation should be construed in support of the right of the natural parent.’”  (Cattalini, supra, 72 Cal.App.2d at p. 669.)  Cattalini applied Welfare and Institutions Code section 701, a predecessor statute to Civil Code section 232 which preceded section 7822.  Welfare and Institutions Code section 701 (together with other sections in the statutory article) contained no equivalent mandate to prioritize the child’s best interests.  (Cattalini, supra, 72 Cal.App.2d at p. 665; Stats. 1937, ch. 369, §§ 700-702, pp. 1031-1033.)

                        But on the issue of intent to abandon, father further argues the court found he “never intended and does not intend to abandon Allison.”  As we shall discuss, father misconstrues the court’s words.  Viewing the court’s remarks on intent to abandon in their entirety, it is clear the court found father intended to abandon Allison for the statutory period of time.  At the outset of its relevant remarks, the court recognized the difficulty of proving a parent’s intent to “permanently” abandon a child, and noted the law therefore requires abandonment only “for the statutory period of time,” citing In re Daniel M. (1993) 16 Cal.App.4th 878 (Daniel M.).  The court then stated to father:  “I appreciate . . . that you never intended and don’t intend to abandon the child.  [¶]  And that’s true of virtually every parent I’ve seen that opposed a termination, but that’s not the test.  [¶]  As said in Daniel M., all that is necessary is for the lawful period to go on, the noncommunication, the nonsupport for the statutory period of time — in this case that would be for a period of one year — that would be sufficient for saying you abandoned the child.  [¶]  It doesn’t have to be the intent to permanently abandon.  Just for the statutory time . . . .”  The court then made the following formal finding:  “[T]he court finds that was not done with an intent to abandon for the statutory period of time, because I recognize that you have never intended to abandon that child, but for the statutory period of time that we are considering.”  Based on the court’s earlier comments and the inconsistencies evident in its formal finding, it is clear the court misspoke when it stated, “that was not done with an intent to abandon for the statutory period of time.”  Rather, the court meant to express its finding father did not intend to permanently abandon Allison.  This is also evident from the court’s finding father presumptively intended to abandon Allison because he did not support or communicate with her for over one year.  In addition, the minute order confirms the court’s finding father intended to abandon Allison for the statutory period.[9]

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