Minors. J.D. v. Southdakota (In re H.D.)

246 Cal. Rptr. 3d 802, 35 Cal. App. 5th 42
CourtCalifornia Court of Appeal, 5th District
DecidedMay 8, 2019
DocketE070576
StatusPublished
Cited by13 cases

This text of 246 Cal. Rptr. 3d 802 (Minors. J.D. v. Southdakota (In re H.D.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minors. J.D. v. Southdakota (In re H.D.), 246 Cal. Rptr. 3d 802, 35 Cal. App. 5th 42 (Cal. Ct. App. 2019).

Opinion

SLOUGH J.

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.

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 *805would 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 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.

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 *806sobriety 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 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.

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Cite This Page — Counsel Stack

Bluebook (online)
246 Cal. Rptr. 3d 802, 35 Cal. App. 5th 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minors-jd-v-southdakota-in-re-hd-calctapp5d-2019.