Filed 5/8/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re H.D. et al., Minors.
J.D., E070576 Petitioner and Respondent, (Super.Ct.Nos. HEA1700176, v. HEA1700177)
S.D., OPINION
Objector and Appellant.
APPEAL from the Superior Court of Riverside County. Kathleen Jacobs,
Temporary Judge. (Pursuant to Cal. Const., art. VI, §21.) Reversed.
Julie A. Duncan for Objector and Appellant.
Zeiler Law Group and Kerry P. Zeiler for Petitioner and Respondent.
1 Recognizing she suffered from addiction, S.D. (mother) agreed to let her ex-
husband, E.D. (father), assume full custody of their two daughters—who had previously
lived primarily with her—until she could get clean and sober. She underwent treatment,
and 14 months later, sought to regain partial custody in family court. About a week after
mother filed for custody, father’s wife, J.D. (stepmother), filed petitions to free the girls
from mother’s custody and control based on abandonment, so stepmother could adopt
them. (Fam. Code, § 7822, subd. (a)(3), unlabeled statutory citations refer to this code.)
The trial court granted the petitions and terminated mother’s parental rights. The court
concluded mother had abandoned her daughters because she had failed to communicate
with or financially support them for at least one year.
Mother argues the evidence is insufficient to support the court’s ruling, and we
agree. Under section 7822, subdivision (a)(3), a parent abandons their child when they
leave the child with the other parent for a year, with no communication or financial
support, “with the intent . . . to abandon the child.” (Italics added.) Mother’s failure to
communicate with and financially support her daughters was not due to any intent on her
part to abandon her daughters. Indeed, mother did the opposite of abandon her children,
she diligently treated her addictions before trying to regain custody. Because the record
contains uncontradicted evidence of her abiding desire and plan to reunify with her
children, we reverse the judgment terminating her parental rights.
2 I
FACTS
Mother and father were married for three years and have two daughters together,
H.D., who was born in 2009 and is now nine years old, and E.D., who was born in 2012
and is now six. After they divorced in 2012, the court awarded primary custody to
mother, with visits for father three weekends a month. In 2014, father began dating J.D.
and they eventually married in 2016.
In the spring of 2015, the girls lived with father and stepmother for a month while
mother participated in alcohol addiction treatment in Arizona. In June 2015, mother and
father obtained a revised custody order, agreeing to shared custody. Father would take
care of the girls while mother was working.
In March 2016, father began to suspect mother was using drugs and sought an ex
parte order granting him temporary sole custody of the girls. Mother acknowledged she
was actively using methamphetamine and agreed to a stipulated custody order giving
father sole custody on a temporary basis. Under that order, which was issued in April
2016 and titled “stipulation and order for temporary custody and visitation,” mother was
allowed visitation “upon mutual agreement between the parties.” According to father,
mother tried to arrange visits or at least speak with the girls three times in the following
month, but he refused based on his family therapist’s advice that allowing mother to
contact or visit would be stressful for the girls. A few weeks later, in mid-May, mother
left a voice message for the girls on father’s phone and texted father asking him to play it
3 for them. Father again refused, responding that the therapist did not want the girls to
listen to her message “because you are trying to guilt the girls into calling.” At trial,
mother said she stopped trying to contact or see the girls after that because she felt she
was “hitting a wall with [father].” She didn’t want fights with him to be a “trigger for her
addictions” so she decided to focus on getting healthy and fighting for custody in family
court.
In August 2016, father returned to family court and sought a new custody and
visitation arrangement. Mother appeared before the court and said she didn’t want to
fight with father and would “sign whatever you have.” The resulting “stipulation and
order on request for order” granted father “sole legal and sole physical custody” of the
girls, with mother having “professionally supervised visitation at her cost, upon mutual
agreement of the parties.” Under the order, mother agreed to attend substance abuse
meetings, enroll in substance abuse and parenting counseling, and submit to hair follicle
drug testing at father’s request. If she tested positive, her visitation rights would be
suspended until she furnished a negative test.
In December 2016, the court ordered mother to pay $893 a month in child support.
For the next year, mother underwent treatment for alcohol and methamphetamine
addiction. In December 2016, she completed 30 days of residential rehabilitation in
Lancaster. After that, she participated in five months of sober living followed by six
months of an “intensive outpatient” program.
4 On December 4, 2017, mother filed a request to modify the August 2016 custody
order. She sought a shared custody arrangement where she would care for the girls
Wednesday nights and every other weekend.
On December 15, 2017, stepmother filed petitions to free the girls from mother’s
custody and control under section 7822 so she could adopt them. Her petitions alleged
the girls had been residing with her and father for more than a year and mother had not
been in contact with the girls or paid support for the preceding one-year period. Mother
opposed the petitions and submitted a declaration explaining her recent absence from the
girls’ lives. She told the court she had never intended to abandon her daughters—that she
had agreed to the 2016 custody orders because she believed they were only temporary
and that she could regain custody once she got clean. She said she had been sober for 14
months and was trying to reunify with her daughters in family court. “It has been a long
haul, but I completed and continue to complete the work, to stay on track. I did not want
to come in and out of our daughters’ lives, so I made sure I could maintain sobriety
before coming back to [family] court to re-establish my parenting rights with our girls.”
She said she was willing to attend counseling with the girls and would agree to
supervised visits if the court found that was necessary. “All I want is to return to being a
co-parent to our girls.”
Mother explained she had not planned to “just up a[nd] leave our girls” when she
went into treatment, but father had denied her requests to speak with the girls while they
were in his custody. She said father had led her to believe he would let her have a
5 relationship with the girls while she was seeking treatment if she agreed to give him full
custody. She realized after she agreed to the custody arrangement, however, that he “had
no intention of allowing me to have a relationship with the girls at that point.” “I would
NEVER abandon our children. However, at the same time, I could not allow [father] to
be a further trigger for my addiction, so I knew I had to get clean and strong again, so that
I could come back and fight him for my rights to co-parent our girls.” Mother explained
she had been the girls’ primary caregiver during her marriage to father and for years after
the divorce. “I know that I have only myself to blame for losing all that time with our
children, but I wanted to be the parent they remembered, and I can say that I presently am
. . . I admit that I made mistakes in the past and I take full responsibility for them, but I
have been their mother for much longer than [stepmother] has been married to the girls’
father, so she should not be permitted to replace me. I am their mother, who gave birth to
those girls, and no other mother can love them as much as I do. [¶] While I appreciate
[her] caring for our daughters in my absence, during my effort to become well, . . . our
children have only 1 mother, and that is me. I respectfully request that the Court deny
[stepmother’s] request to terminate my parental rights and to adopt my daughters . . . and
allow the custody of our children to be worked out in the family law action.” Mother
attached to her declaration documentation from the treatment programs she had attended,
clean hair follicle test results from December 28, 2017, and a printout of her text
conversations with father from the spring of 2016 when he refused to let her contact the
girls.
6 Mother’s grandfather filed a declaration asking the court to deny stepmother’s
petitions. He said father had been letting the girls stay with him and his wife, the
maternal great-grandmother, every other weekend, but then “banned” all overnight visits
when mother filed to regain custody. He said mother had gotten “clean and sober” to
“establish[] her way back into the children’s lives” and the girls “deserve[d] their own
mother in their lives.”
In February 2018, mother paid $1,000 in child support. The following month, she
paid another $1,000.
A probation officer interviewed the family under section 7851 and submitted a
report recommending the court deny stepmother’s section 7822 petitions.1 During her
interview, mother told the probation officer she had fully participated in treatment and
had been sober for 15 months. She was living with her fiancé and was pregnant with his
child. She was currently financially dependent on him, but planned to seek employment
after her child was born. Thanks to his help, she had recently been able to provide some
financial support to her daughters. She admitted she had made no efforts to communicate
with the girls since May 2016 and explained she had wanted to get sober before
reunifying. “[S]he felt it was not suitable to have involvement in her daughter’s lives
until she achieved sobriety and learned the tools necessary to cope with her substance
abuse issues.” Father told the probation officer he believed mother’s failure to
1 Section 7851 requires “[t]he juvenile probation officer . . . [to] render to the court a written report . . . with a recommendation of the proper disposition to be made in the [section 7822] proceeding in the best interest of the child.” 7 communicate with the girls or pay any financial support for a period of a year
“demonstrates her willful absence” from her daughters’ lives.
H.D., who was then eight years old, told the probation officer she wanted
stepmother to adopt her. She could not remember the last time she talked to mother, and
she liked the way things were, living with father and stepmother. E.D., who was five
years old at the time, was too young to understand the nature of the custody proceedings,
but she did say she regards stepmother as her “mom” and mother was “not a part of her
family.”
The probation officer recommended against terminating mother’s parental rights.
The officer concluded mother did not intend to abandon her daughters when she left them
in father’s care, rather she had intended to treat her addictions so she could reenter their
lives in a healthy manner.
The court held the hearing on stepmother’s petitions in March 2018. Father and
stepmother testified they had no contact with mother after the August 2016 custody order
and she had been absent from the girls’ lives for over a year. Mother testified she never
intended to abandon her daughters, but had instead wanted to ensure before reentering
their lives she wouldn’t relapse. She said when she stipulated to the most recent custody
order, she was under the impression that if she treated her addictions she would be able to
resume caring for the girls. She acknowledged she owed approximately $19,000 under
the December 2016 support order, but explained she hadn’t been able to pay child
support because she was unemployed. She said her dental assistant license is still active
8 and she plans to start working again after her son is born. She and her fiancé had recently
moved from Palmdale to Murrieta to be in the same city as her daughters. They had
rented a three-bedroom home so the girls could have their own room and had purchased a
large SUV big enough for all three children.
Mother’s fiancé testified mother had told him within a week of their meeting that
she was trying to reunite with her daughters. He said she talked about her girls all the
time and he could tell reunifying with them was very important to her. He said it had
been her idea to move to the same city as the girls and get a larger place so the girls could
live with her.
Mother’s great-aunt also testified that mother had never intended to abandon her
daughters and “wanted the girls to be back in her life.” She said mother had wanted to go
to family court to seek custody as early as June 2017, but had felt she should get “her
criminal [record] taken care of” before doing so. The great-aunt had helped mother pay
her outstanding criminal fines so she could try to regain custody of her daughters.
Mother’s grandparents also testified on her behalf. They had been very involved
in the girls upbringing, spending holidays and every other weekend with them, until
mother tried to regain custody. The grandfather said mother had asked him in April 2016
if she could speak to the girls when they were staying with them. When he asked father
if that would be okay, father said no. The grandparents continued to watch the girls every
other weekend while mother was in treatment, and they gave some financial support to
father—they contributed by purchasing the girls’ school lunches and helping father pay
9 for daycare. The grandmother said father became “very upset” when mother tried to
regain custody, closed the grandparents’ school lunch account, and pulled back all the
pictures of the girls he had shared with them through their phones. The grandparents
wanted to help mother reunify with her daughters and had assisted her in finding and
paying for an attorney to oppose stepmother’s petitions. The grandmother said mother
had been “very close” with her daughters before she lost custody.
The court concluded mother had abandoned her daughters within the meaning of
section 7822, subdivision (a)(3). The court explained it did not believe mother had
intended to permanently abandon the girls; however, the fact she failed to communicate
with or financially support her daughters for over a year demonstrated she had intended
to abandon them during that period. Mother timely appealed.
II
DISCUSSION
A. General Legal Principles
The Family Code authorizes a court to terminate parental rights if the parent has
abandoned their child. (§§ 7803, 7822.) Relevant here, a parent abandons a child if they
have “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 . . ., with the
intent . . . to abandon the child.” (§ 7822, subd. (a)(3).) “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
10 . . . 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].’’” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010
(Allison C.), quoting In re Cattalini (1946) 72 Cal.App.2d 662, 665 (Cattalini), italics
added.)2
The failure to communicate or provide financial support for a one-year period is
presumptive evidence of an intent to abandon, and “token efforts” to support or
communicate will not overcome the presumption. (§ 7822, subd. (b).) However, “[t]he
fact that a parent has not communicated with a child . . . or that the parent intended to
abandon the child does not become material . . . unless the parent has ‘left’ the child”
within the meaning of section 7822. (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754
(Jacklyn F.).)
A finding of abandonment “shall be supported by clear and convincing evidence”
(§ 7821), and we apply a substantial evidence standard of review to the trial court’s
findings. (Allison C., supra, 164 Cal.App.4th at p. 1009.)
Mother argues the record contains insufficient evidence she “left” her daughters
with father or she intended to abandon them. We agree.
2 “Section 7822 became operative in 1994. (Stats. 1992, ch. 162, § 10, p. 464.) The language that currently appears in section 7822 . . . previously appeared in nearly identical form in former Civil Code section 232, subdivision (a) (Stats. 1961, ch. 1616, § 4, p. 3504), and prior to that, in former Welfare and Institutions Code section 701 (Stats. 1937, ch. 369, § 701, p. 1031).” (In re Amy A. (2005) 132 Cal.App.4th 63, 68, fn. 4.) Courts continue to rely on the cases decided under the previous statutory provisions interpreting the nearly identical language, and we do so here. (E.g., ibid.; In re Jacklyn F. (2003) 114 Cal.App.4th 747; Allison C., supra, 164 Cal.App.4th 1004.) 11 B. Mother Did Not “Leave” Her Daughters
Leaving a child in the care of another does not require a literal physical desertion;
instead, “[c]ase law consistently focuses on the voluntary nature of a parent’s
abandonment of the parental role.” (In re Amy A., supra, 132 Cal.App.4th at p. 69,
italics added.) For example, a parent voluntarily abandons their parental role if they
choose to commit criminal acts that result in incarceration. (Allison C., supra, 164
Cal.App.4th at pp. 1011-1012.) However, a parent does not voluntarily abandon their
parental role if the other parent takes the child away or a court places the child in the
custody of another. (Cattalini, supra, 72 Cal.App.2d at p. 665; Jacklyn F., supra, 114
Cal.App.4th at p. 756.)
The “leaving must be voluntary and abandonment does not occur when the child is
taken from parental custody against the parent’s wishes.” (In re George G. (1977) 68
Cal.App.3d 146, 160, italics added.) “Abandonment is not established by acts of
relinquishment committed under circumstances of coercion.” (In re Jones (1955) 131
Cal.App.2d 831, 834-835.) In Matter of Cozza (1912) 163 Cal. 514, the court concluded
the mother did not “leave” her daughter in the care and custody of another when the child
was taken from her “against her wishes” and she “endeavored . . . to secure the return of
the child.” (Id. at pp. 528-529.) However, if after a child is taken against the parent’s
wishes that parent does not endeavor to secure the child’s return but instead fails to act,
their inaction can “convert[]” the earlier taking into a leaving. (Jacklyn F., at p. 755 [“the
12 leaving requirement for abandonment may be satisfied by evidence of parental
nonaction”]; In re Jack H. (1980) 106 Cal.App.3d 257, 264.)
The facts of this case fall somewhere in between a judicial taking and a voluntary
relinquishment of the parental role. Although mother stipulated to the custody orders
placing the girls with father, she did so only after father went to court ex parte to obtain
custody based on her active alcohol and methamphetamine addictions. Faced with the
likely prospect of an involuntary judicial taking, mother made things easier for everyone
by agreeing to the custody order and to seek treatment for her addictions. Moreover, as
soon as father assumed full custody, mother endeavored to regain custody by
immediately seeking treatment, getting sober, and returning to court to seek modification
of the custody order. The record therefore does not support a finding she voluntarily
relinquished her parental role, instead it suggests she temporarily suspended her parental
duties to address the obstacles that were hindering her ability to fulfill her role as the
girls’ mother.
To be clear, our conclusion does not mean that every parent who loses custody of
their child because of addiction has not “left” that child. If mother had not been as
diligent as she was in seeking treatment, our conclusion might be different. However, the
law should not penalize those parents who acknowledge and then earnestly address their
addictions by deeming their agreement to seek treatment a desertion of their child.
13 C. Mother Never Intended to Abandon Her Daughters
“‘The relationship of a natural parent to her children is a vital human relationship
which has far-reaching implications for the growth and development of the child.’” (In
re George G., supra, 68 Cal.App.3d at p. 165.) While a parent need not intend to
abandon their child permanently for the court to employ the “drastic remedy” of
terminating their parental rights under section 7822, subdivision (a)(3), they must intend
to abandon their child for at least one year. (In re George G., at p. 165; In re Amy A.,
supra, 132 Cal.App.4th at p. 68, citing In re Daniel M. (1993) 16 Cal.App.4th 878, 885
[“it is sufficient that the parent had the intent to abandon the child during the statutory
period”].)
Here, the trial court based its conclusion that mother intended to abandon her
daughters for a year on her failure to communicate with or support them during that time
period. While it is undisputed mother failed to contact or financially support her
daughters for over a year—from mid-May 2016 (her last attempt to contact the girls) to
February 2018 (when she gave her first child support payment of $1,000)—under section
7822, each act—leaving the child, failing to communicate, and failing to support—must
have been done with the intent to abandon the child. Thus, “[t]he crucial issue here then
was whether or not the alleged acts of [mother] were committed by [her] ‘with the intent
to abandon’ [the girls].” (Cattalini, supra, 72 Cal.App.2d at p. 668.)
The record contains uncontradicted evidence mother never intended to abandon
her girls. She testified she believed she was letting father assume custody only for so
14 long as it took her to treat her addictions and return to family court to seek modification
of the custody arrangement. Her fiancé, great-aunt, grandmother, and grandfather all
corroborated this testimony with their own observations of mother’s desire to reunify
with her daughters. The weightiest evidence of intent, however, was mother’s actions.
After becoming and remaining sober, mother wasted no time in returning to family court
and seeking to regain custody.
Regarding her failure to contact and support her daughters, the evidence
demonstrates she was unable to do so, not that she didn’t want to or didn’t care. It is
undisputed mother tried to maintain contact when she lost custody (both through father
and through her grandfather), but father did not want the girls interacting with her. While
we do not fault father for trying to protect what he saw as his daughters’ best interests, it
would be unfair to treat his decision to prevent contact as evidence that mother didn’t
care to talk to her daughters. It is also undisputed mother was unemployed during the
months she failed to pay child support and was therefore unable to comply with the
support order. A parent’s failure to support a child when they do not have the ability to
do so does not, by itself, prove intent to abandon. (See In re Baby Boy M. (1990) 221
Cal.App.3d 475, 482; In re T. M. R. (1974) 41 Cal.App.3d 694, 698, fn. 2 [mother’s
failure to support her children was not an issue because it was undisputed she was
financially unable to do so during her incarceration]; Adoption of Oukes (1971) 14
Cal.App.3d 459, 467 [“[f]inancial inability may excuse the failure to send any funds for
support of the children”]; see also Cattalini, supra, 72 Cal.App.3d at p. 667 [when a
15 parent’s failure to provide financial support “was by reason of the inability to do so, less
evidence than under other circumstances would naturally be required to overthrow [the]
presumption” of intent to abandon].) Mother’s grandparents were providing some
financial and much caretaking support while she was in treatment, and, significantly, as
soon as she was able to afford it, she sent her daughters $2,000. (See Adoption of R. R. R.
(1971) 18 Cal.App.3d 973, 984 [the failure to financially support was not accompanied
by an intent to abandon where mother “was without the wherewithal to provide such
support” and “her relatives had voluntarily undertaken to provide for [the child’s] care
and support”].)
Here, the trial court relied solely on the presumptive evidence of intent to
abandon—failure to communicate or provide financial support—and ignored the
overwhelming undisputed evidence mother actually never intended to abandon her
daughters and was actively working to reunite with them. Section 7822 is clear—
termination of parental rights is unwarranted if the failure to communicate or provide
financial support is not accompanied by an intent to abandon. (§ 7822, subd. (a)(3);
Cattalini, supra, 72 Cal.App.2d at p. 665 [the acts required for abandonment “are subject
to the qualification that they must have been done ‘with the intent on the part of such
parent or parents to abandon’”].)
Stepmother argues mother’s motivation to rehabilitate was selfish and had nothing
to do with reunification. According to stepmother, mother focused on herself after
getting out of rehab—getting engaged and acquiring a larger home and vehicle. We
16 cannot agree with that characterization. It overlooks the clear evidence of mother’s
desire to reunify—the fact she sought to regain custody as soon as she had been sober for
a year, paid $2,000 in child support as soon as she was able, and moved to the same city
as her daughters. We conclude mother’s attempts to contact her daughters, her diligence
in treating her addictions, her attempt to regain custody in family court, and her payment
of support when she was able preclude a finding of abandonment.
III
DISPOSITION
We reverse the judgment.
SLOUGH J.
We concur:
MILLER Acting P. J.
CODRINGTON J.