In re Ava H. CA4/1

• Court: California Court of Appeal
• Decided: August 2, 2013
• Docket: D063284
• Status: Unpublished

Opinion

Filed 8/2/13 In re Ava H. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re AVA H., a Minor. D063284 FRANCISCO M. et al.,

Petitioners and Respondents, (Super. Ct. No. A58238)

v.

PHILLIP M.,

Objector and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia

Bashant, Judge. Affirmed.

Christopher R. Booth, under appointment by the Court of Appeal, for Objector and

Appellant.

Stocks & Colburn and Janis K. Stocks for Petitioners and Respondents.

Lelah S. Fisher, under appointment by the Court of Appeal, for Minor. Phillip M. appeals the judgment declaring his daughter, Ava H., free from his

custody and control (Fam. Code, § 7822, subd. (a)(2))1 upon the petition of Ava's

maternal grandmother and stepgrandfather, Lisa M. and Francisco M. (individually,

grandmother and grandfather; together, the grandparents). Phillip contends there is not

substantial evidence to support the finding that he left Ava with the grandparents with the

intent to abandon her. We affirm.

BACKGROUND

In March 2007, Ava was born to Emily H. Phillip was present at the birth, as were

the grandparents, and Phillip's name is on Ava's birth certificate. After being released

from the hospital, Emily and Ava went to live with the grandparents. Phillip stayed with

friends and had sporadic contact with Ava. In April or May, Phillip was arrested and

incarcerated for a drug offense. In July or August, he was released and began living in an

apartment with Emily and Ava. Emily and Ava spent every day at the grandparents'

home.

In December 2008, the grandparents suspected Phillip was using drugs or alcohol,

and Emily and Ava began spending more time at the grandparents' home. By April 2009,

it was clear that Phillip was using drugs or alcohol. In May, Emily and Phillip ended

their relationship, and Emily and Ava moved in with the grandparents. Phillip had

sporadic contact with Ava.

1 Further statutory references are to the Family Code. 2 In December 2009, Phillip appeared at the grandparents' home under the influence

of drugs or alcohol. They asked him to leave. In March 2010, Phillip had one visit with

Ava2 and his whereabouts became unknown. On July 16, the family court granted legal

and physical custody of Ava to Emily and ordered supervised visitation for Phillip upon

proof of 60 days' sobriety. Phillip received actual notice of the family court case but

decided not to appear after reading declarations that said "horrible things" about him.

In August 2010, Phillip entered a drug rehabilitation program in Vista. He was

released from the program in May 2011. The grandmother did not know Phillip was in

the program and had no communication with him during that time. Phillip testified that

while he was in the program, Emily brought Ava to see him twice, once in December

2010 and once in March 2011.3 While he was in the program, Phillip did not seek a

change in the visitation order because he believed he "needed to graduate first and gain

some stability first." Later, he "[j]ust wasn't prepared yet to be there for [Ava]." In

December 2010, Phillip's mother wrote to the grandparents that Phillip "calls me every

few weeks, is doing well."

In June 2011, Emily moved out of the grandparents' home and the grandparents

had no further contact with her. In July, Phillip went to the grandparents' home and

began monthly visits with Ava. According to the grandparents, this was Phillip's first

contact with Ava in at least 15 months. Phillip said he would like to see Ava from time

2 Phillip also attended a couple of Ava's T-ball or soccer games when she was three to five years old.

3 The grandmother testified this was "highly unlikely." 3 to time. Between July and October, there were five visits.4 There were no visits in

November or December. In November, Phillip went to Alaska to work for several

months. He returned to San Diego for a month, then visited relatives and friends in other

states. While he was gone, the grandmother had no communication with him, although

Phillip might have called the grandfather once.

In March 2012, the grandparents filed a petition to declare Ava free from Emily's

custody and control. In April, when Phillip returned to San Diego, the grandparents met

with him. In April or May, Phillip had a visit with Ava. His behavior led the

grandparents to suspect he was using drugs, but Phillip claimed he had not used drugs

since completing the rehabilitation program. In April or May, Phillip failed to show up

for a visit. In June, he told the grandparents he was going to Maine for a month. He was

gone four months.

On June 26, 2012, the grandparents filed their petition to declare Ava free from

Phillip's custody and control, alleging the following: Phillip left Ava in the grandparents'

care "since her birth, and off and on, for more than six (6) months during her lifetime. . . .

Since [Ava's] birth, [Phillip] has only had token communication with the [grandparents],

for a period of over six (6) months, all with the intent on [Phillip's] part . . . to abandon

[Ava] for more than six months."

In August 2012, Phillip returned from out of state and contacted the grandparents.

At the grandparents' invitation, Phillip had dinner with them and Ava at the grandparents'

4 Phillip testified that he visited Ava on Halloween 2011. 4 home. In August or September, Phillip hired an attorney in an effort to obtain

unsupervised visitation. After that, Phillip was served with the grandparents' petition. In

September, Phillip visited Ava once. In October, the court found that Emily had failed to

communicate with and support Ava for at least one year.

At the conclusion of trial in December 2012, the court stated that viewing the

"time line . . . even in kind of the best case scenario for [Phillip] from the time Ava has

been two he really has been completely out of the picture." The court cited three periods

during which Phillip had no contact with Ava, or only token communication: eight

months preceding Phillip's appearance at the grandparents' home in December 2009; 12

months preceding December 2010; and seven months between Halloween 2011 and May

2012. The court found that Phillip had left Ava in the custody and control of others; he

had had no contact with her for at least one year; and his failure to communicate with

Ava demonstrated he had abandoned her. The court declared Ava free from Phillip's and

Emily's custody and control.

DISCUSSION

A child may be declared free from parental custody and control if "[t]he child has

been left by both parents or the sole parent in the care and custody of another person for a

period of six months without any provision for the child's support, or without

communication from the parent or parents, with the intent on the part of the parent or

5 parents to abandon the child."5 (§§ 7822, subd. (a)(2) & 7820.) The petitioner must

establish these elements by clear and convincing evidence. (§ 7821.) The purpose of

section 7822 "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.)" (Adoption of Allison C. (2008)

164 Cal.App.4th 1004, 1009-1010.) On appeal, "[w]e simply determine whether there is

substantial evidence, believed by the trial court, that supports the court's findings.

[Citation.]" (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 503 (Jill &

Victor D.).)

Phillip first contends section 7822, subdivision (a)(2) is inapplicable here. He

argues the grandparents should have proceeded under section 7822, subdivision (a)(3),

which applies when "[o]ne parent [Phillip] has left the child in the care and custody of the

other parent [Emily] for a period of one year . . . ." Here, "both parents," Phillip and

Emily, left Ava "in the care and custody of [the grandparents]" within the meaning of

section 7822, subdivision (a)(2). The grandparents, not Emily, are the petitioners, and

they correctly proceeded under section 7822, subdivision (a)(2).

Phillip next contends he did not leave Ava, as required by section 7822,

subdivision (a)(2), because the family court order deprived him of custody. Phillip is

incorrect.

5 Here, the petition alleged that Phillip failed to support Ava, but the court found that Phillip did provide support. The statute does not require both a failure to support and a failure to communicate; we discuss only whether there is substantial evidence that Phillip failed to communicate with Ava. 6 "[A] parent 'leaves' a child by ' "voluntarily surrender[ing]" ' the child to another

person's care and custody." (In re Amy A. (2005) 132 Cal.App.4th 63, 69 (Amy A.).) "[A]

parent will not be found to have voluntarily left a child in the care and custody of another

where the child is effectively 'taken' from the parent by court order [citation]; however,

the parent's later voluntary inaction may constitute a leaving with intent to abandon the

child." (Jill & Victor D., supra, 185 Cal.App.4th at p. 504.) "[T]he leaving-with-intent-

to-abandon-the-child requirement of section 7822 can be established by evidence of a

parent's voluntary inaction after an order granting primary care and custody to the other

parent. [Citations.] [¶] Simply stated, 'nonaction of the parent after a judicial decree

removing the child may convert a [judicial] "taking" into a "leaving" [of a child by the

parent].' [Citations.]" (Ibid.)

Here, Phillip's "repeated inaction in the face of the custody order provides

substantial evidence he voluntarily surrendered his parental role and thus 'left' [Ava]

within the meaning of section 7822." (Amy A., supra, 132 Cal.App.4th at p. 70.) In Amy

A. the mother and daughter moved out of the father's home at his suggestion. The father

refused to have any contact with his daughter for more than two years. During that time,

the mother obtained a divorce; the court granted her sole legal and physical custody and

granted the father visitation. (Id. at p. 66.) The mother remarried, and the court granted

her husband's section 7822 petition. (Amy A., at pp. 65, 67.) This court rejected the

father's contention that the custody order precluded a finding he had left his daughter,

noting he had not appeared in the divorce proceedings or made any attempt to seek

7 modification of the custody order or exercise his visitation rights. (Id. at p. 70.) Amy A.

is on point here.

Phillip relies on In re Jacklyn F. (2003) 114 Cal.App.4th 747 (Jacklyn F.), which

is distinguishable from the instant case. There, the grandparents filed a guardianship

petition three days after the mother left the child in their care. The mother filed

opposition, sought the child's return and appeared at a hearing slightly more than a month

after the petition was filed. The reviewing court concluded, "[o]nce the guardianship was

granted, . . . the minor's custody status became a matter of judicial decree, not

abandonment." Thus, the mother's "conduct following the granting of the guardianship—

which included sending 'stacks' of letters to the minor but failing to visit her—did not

constitute 'parental nonaction' amounting to a leaving." The court did "not discount the

possibility that, under different circumstances, it might be proper to conclude that a

parent has 'left' a child within the meaning of section 7822 despite court intervention. . . ."

(Id. at p. 756.) Such circumstances are present in Phillip's case. Unlike the mother in

Jacklyn F., he made little if any effort to communicate with Ava for at least a year after

the family court made its custody order. (Id. at p. 747.)

Finally, Phillip contends the grandparents failed to prove he intentionally

abandoned Ava. He relies largely on his own testimony concerning his contact with Ava

and his unsuccessful attempts at further contact. The grandmother refuted Phillip's

testimony and the court impliedly found it not credible. " 'The questions of abandonment

and of intent . . . are questions of fact for the resolution of the trial court.' [Citation.]"

(Jill & Victor D., supra, 185 Cal.App.4th at p. 506.) "[W]e do not pass on the credibility

8 of witnesses, resolve conflicts in the evidence, or determine the weight of the evidence.

[Citation.]" (Id. at p. 503.)

" 'The controlling issue for a finding of abandonment is the subjective intention of

the parent[,]' " but " '[i]ntent to abandon . . . may be found on the basis of an objective

measurement of conduct, as opposed to stated desire.' " (In re Brittany H. (1988) 198

Cal.App.3d 533, 550.) "In determining a parent's intent to abandon, the trial court may

consider not only the number and frequency of his or her efforts to communicate with the

child, but the genuineness of the effort under all the circumstances [citation], as well as

the quality of the communication that occurs [citation]." (In re B.J.B. (1986) 185

Cal.App.3d 1201, 1212.) "The . . . failure to communicate is presumptive evidence of the

intent to abandon. If the parent or parents have made only token efforts

to . . . communicate with the child, the court may declare the child abandoned by the

parent or parents." (§ 7822, subd. (b).) "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." (Amy A., supra, 132 Cal.App.4th at p. 68, citing In re

Daniel M. (1993) 16 Cal.App.4th 878, 885.) Under these criteria, substantial evidence

supports the court's findings that Phillip left Ava in the grandparents' care and custody for

six months, without communication, with the intent to abandon her.

9 DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.