 


Filed 12/11/14 In re E.C. CA5




                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.




                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                                         FIFTH APPELLATE DISTRICT

In re E.C., a Minor.

M.C.,                                                                                      F069227

              Petitioner and Respondent,                                        (Super. Ct. No. AT-3381)

                             v.                                                           OPINION

U.C.,

              Objector and Appellant.



                                                               THE COURT*
              APPEAL from a judgment of the Superior Court of Kern County. John D.
Ogelsby, Judge.
              Carolyn S. Hurley, under appointment by the Court of Appeal, for Objector and
Appellant.
              No appearance for Petitioner and Respondent.

                                                                -ooOoo-    

                                                            
*             Before Hill, P. J., Levy, J. and Detjen, J.

 
 



              U.C. (father) appeals the judgment declaring his minor daughter, E.C. (the child),
free from his custody and control (Fam. Code,1 § 7822), upon the petition brought by her
mother, M.C. (mother). On appeal, father contends that the evidence was insufficient to
show he left the child with the intent to abandon her within the meaning of section 7822,
and the trial court abused its discretion in granting mother’s petition because it was not
shown that terminating his parental rights was in the child’s best interests. We disagree
with his contentions and affirm the judgment.
                                       FACTUAL AND PROCEDURAL BACKGROUND
              In 2005, the child was born in Bakersfield. Father spent some time with the child
before he left Bakersfield and moved to Mexico, where he lived between 2006 and 2009.
              In 2008, while father was living in Mexico, mother obtained a judgment awarding
her sole legal and physical custody of the child. After father returned from Mexico, he
saw the child once at the child’s maternal great grandmother’s house around July 4, 2009,
when mother was in the hospital giving birth to one of the child’s half-siblings.
              Father was incarcerated from December 2010 until December 2011. He made no
child support payments until he got a steady job in January 2013, at which time his
paychecks were garnished to pay his past support obligation.2
              In September 2013, mother petitioned to terminate father’s parental rights and to
declare the child free from father’s custody and control under section 7822.
              On November 13, 2013, the family court services investigator filed a report
recommending that the trial court grant mother’s petition. According to the report,
mother currently lived with the child, mother’s significant other, J.A., and the child’s two



                                                            
1      All further statutory references are to the Family Code unless otherwise specified.
2      At trial, father testified mother “took [him] off” child support around January 2013, and
the amounts being deducted from his paycheck were for “back pay” he owed.
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half-siblings. The child was aware of who father was but had no recollection of him and
regarded J.A. as her father.
       Mother told the investigator she and J.A. had been in a relationship since 2008,
when the child was three years old. Mother and J.A. had two children together, a four-
year-old boy and a two-year-old girl. In 2011, mother earned a Bachelor of Arts degree
and was currently employed as a fraud investigator with a credit union.
       Mother reported the child had expressed confusion about having a different last
name than her half-siblings and wanted to drop father’s last name from her legal name. It
was mother and J.A.’s intention, once they were married, for J.A. to adopt the child.
Mother noted she had been cautious about the amount of information she had given to the
child about father, explaining the child was doing so well emotionally and academically,
mother did not want to cause any disruptions.
       According to mother, father had made no effort to contact mother or see the child
in more than five years, he made no attempt to modify the existing custody order, and he
had not provided any form of support for the child.
       Father appeared in court on November 15, 2013, the court appointed counsel, and
continued the hearing to January 2014. In January, the court continued the hearing to
March, and ordered the investigator to file a supplemental report.
       The investigator interviewed father on March 7, 2014. Father reported that he was
unaware of the family court proceeding, which took place on April 21, 2008, in which
mother was awarded sole legal and physical custody of the child as he was residing in
Mexico at the time. According to father, he believed he and mother were still in a long-
distance dating relationship and was surprised by the family court proceeding.
       The investigator questioned father as to why he did not file for visitation in the
family court upon his return to the United States. Father replied that he believed he was
unsuitable to have the child around him at that time but now was on the right path, noting
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he was gainfully employed and had no parole violations since his release from jail in
December 2011. Father told the investigator he had planned to file to modify the custody
order, but mother filed the abandonment proceeding before he was able to do so.
       The matter came on for trial on March 14, 2014. On direct examination, mother
testified to the lack of contact from father and his failure to exercise visitation rights and
pay child support.
       On cross-examination by father’s counsel, mother admitted she wanted father to
have little or no contact with the child, and that she had done nothing to foster contact or
establish a relationship between them. Mother did not contact father or his family to let
them know the address where she had been living the past five years, nor did she give
father her phone number. Mother indicated in a court filing that she wanted her address
to be kept confidential because she did not want him to know where she was living.
       Although she was aware his family went to Mexico every summer, mother did not
know father was in Mexico with his sick father in 2008, when mother obtained sole legal
and physical custody of the child. Because mother did not know where father was at the
time, she tried to publish notice of the custody proceedings.
       After mother obtained sole custody of the child, she had some contact with
father’s family and would hear how father was doing, mainly through father’s mother and
sister. Mother never received any Christmas gifts from father for the child and she was
not aware of father’s mother (the paternal grandmother) attempting to call her in 2013.
       Mother did not give her address to father’s sister, who helped babysit the child
when mother was going to college. Mother acknowledged that father’s sister sent her a
message on Facebook but testified “that was years ago.”
       Father’s sister testified that the last time she saw the child was around three years
ago, when the child was five years old. When asked if she made any efforts to contact
mother regarding visitation with the child, father’s sister testified that, “[a]t the beginning
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where my brother wasn’t here,” she and the paternal grandmother would try to call
mother. However, mother would not answer whenever they called, so they would “bug”
mother’s mother (maternal grandmother) who eventually “wouldn’t answer either.” The
last time father’s sister and the paternal grandmother tried to call the maternal
grandmother to get in touch with the child was around three years ago.
       When father’s counsel asked father’s sister whether they made any attempts to
find mother between January 2013 and September 2013, father’s sister testified that she
and the paternal grandmother always used to call the maternal grandmother on the child’s
birthday and on Christmas to try to speak to the child. However, because the maternal
grandmother would not answer their phone calls, “we actually stopped because I think it
wasn’t even worth it if she wasn’t going to let [the child] see us or us to talk to her.”
       Father’s counsel then asked father’s sister if father had ever requested that she
help him to locate mother. She responded: “Through Facebook. I think I texted her one
time through Facebook, but she never answered me back.” When asked how many times
she tried to contact mother in 2013, father’s sister testified: “To tell you the truth,
probably like one time because that was the only time. When I texted her through
Facebook, she never texted me back so I really never tried it again because she wouldn’t
even text back or send me a message back.”
        Father testified that he had known mother since they were 13 years old, but he did
not know where she currently lived. He never received any messages from mother telling
him where she was living. Father wanted to have a relationship with the child and paid
child support, which was deducted from his paycheck.
       When father’s counsel asked father to describe the efforts he made to find mother
between January 1, 2013 and September 13, 2013, father testified he “only went twice to
her grandma’s house,” once at the beginning of the year and once in May. When asked if
he made any inquiries into the child’s location, father testified: “Yeah. I did once and
                                               5
 
 



then they told me they don’t talk to her no more” and “they don’t know where she stay
at.” When asked if he thought he had “exhausted all attempts” to locate the child, father
testified: “No. I think I could have tried harder.”
       Father did not return to Bakersfield during the three-year period when he was
living in Mexico between 2006 and 2009. When father’s counsel asked him why he went
to Mexico, father responded: “I was there when my dad—and I guess I just stayed
there.” Father used to give money to the paternal grandmother to give to the child. The
last item he asked the paternal grandmother to buy for the child was a doll in 2010.
Father thought the child received the doll.
       During cross-examination by the child’s counsel, father acknowledged he told the
investigator he did not contact the child when he got back from Mexico because he
believed he was unsuitable to have his daughter around him. Father explained he did not
have a job, he was drinking a lot, and he was not responsible. When father left for
Mexico in 2006, he and mother used to talk on a weekly basis until she moved in with her
boyfriend. Father was unable to recall when mother moved in with her boyfriend or how
long father and mother kept in touch after father moved to Mexico.
       After listening to the argument of counsel regarding whether the evidence
established father had abandoned the child and terminating his parental rights was in the
child’s best interests, the trial court ruled as follows:

       “Having heard the evidence at the trial, argument of counsel, and reviewed
       and read and considered the Family Court Services investigation report as
       well as supplemental investigation report, the Court will grant the petition.
       And I think [mother’s counsel] has articulated the issue very well. One,
       that the mother has no obligation to seek out the father who has clearly
       abandoned the child for returning to Mexico for a substantial period of time
       and upon his return, based upon the Family Court Services investigator’s
       report, spent a substantial time in custody and did not provide in any direct
       fashion for support. The mother does not have an obligation to seek out,
       under these circumstances, to facilitate the father’s visitation and the Court

                                                6
 
 


       finds that there’s been no frustration by her part. She’s simply gone on
       with her life and obviously that is something that this Court finds to be
       appropriate under these circumstances.”

                                   DISCUSSION
       Father’s contentions on appeal essentially challenge the sufficiency of the
evidence to show that he left the child with the intent to abandon her within the meaning
of section 7822, and that terminating his parental rights was in the child’s best interests.
For reasons discussed below, we reject father’s challenge.
       A.     Applicable legal Standards
       “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.’ (§ 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].”’ [Citation.] ‘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).)” (Adoption of Allison
C. (2008) 164 Cal.App.4th 1004, 1010, fn. omitted.)
       If the court finds abandonment, then it must consider the child’s best interests
before deciding whether to terminate parental rights. (Neumann v. Melgar (2004) 121
Cal.App.4th 152, 156.) The best interests of the child are paramount in interpreting and
implementing the statutory scheme for terminating parental rights. (Id. at p. 162.)
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Section 7890 provides that the “court shall consider the wishes of the child, bearing in
mind the age of the child, and shall act in the best interest of the child.”
       This court applies a substantial evidence standard of review to the trial court’s
findings, keeping in mind that in a section 7822 proceeding, all of the trial court’s
findings must be made by clear and convincing evidence. (§ 7821; In re Amy A. (2005)
132 Cal.App.4th 63, 67 (Amy A.).) We cannot consider the credibility of witnesses,
attempt to resolve conflicts in the evidence, or weigh the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to the trial
court’s order, and affirm the order even if there is substantial evidence supporting a
contrary finding. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880; In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) When two or more inferences can be
reasonably deduced from the facts, the reviewing court is without power to substitute its
deductions for those of the trial court. The direct evidence of one witness is sufficient to
prove a fact. (Evid. Code, § 411.)
       B.     Analysis
       Viewing the evidence in the light most favorable to the judgment, we conclude the
record discloses substantial evidence supporting the trial court’s implicit findings that
father left the child with the requisite intent to abandon the child within the meaning of
section 7822. Father’s trial testimony established that he voluntarily left the child with
mother when he went to Mexico in 2006, and that, sometime during his inexplicably
extended stay, he became aware mother had obtained a judgment awarding her sole
custody of the child and had started a relationship with another man, after which time,
contact between father and mother ceased. Despite father’s apparent awareness of the
custody order and that he could seek modification of the order and request visitation,
father testified to making a conscious decision not to file for visitation upon his return


                                               8
 
 



from Mexico in 2010, because he did not think he was suitable to be around the child at
that time.
       Although father claimed to the investigator that he later planned to file for
modification of the custody order because he now felt he was on the right path, citing the
circumstances that he had no parole violations since his release from jail in December
2011, and that he had found gainful employment, father presented no explanation as to
what prevented him from filing for modification of the custody order and requesting
visitation during the time period between his release from jail in December 2011 and
September 2013, when mother filed the section 7822 petition. Father did not present any
evidence or claim (as he now does on appeal) that he delayed filing because he
reasonably thought he would be able to establish contact with the child without court
intervention in light of the fact that he had known mother and her family since they were
teenagers, and that when he finally realized court intervention was necessary it was too
late because mother had already filed her petition. This theory of why father did not file
for modification of the custody order was not presented to the trial court and we see no
support for it in the record. Indeed, the circumstances that mother obtained sole custody
of the child, began a new relationship, and stopped communicating with father prior to
his return from Mexico in 2010, tend to contradict father’s assertion that it would be
reasonable for him to think that mother would be amenable to letting him see the child
without him needing to file for visitation, when he finally considered himself ready to
have a relationship with the child.
       The record also provides no support for father argument that mother’s alleged
concealment of the child effectively prevented him from communicating with the child
during the statutory period before she filed the petition and that, therefore, the
presumption he intended to abandon the child, which would otherwise arise under section
7822, subdivision (b), was inapplicable. The facts here do now show concealment by
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mother but support the trial court’s conclusion that mother had simply moved on with her
life. Like the trial court, we are aware of no legal authority obliging mother to make
active efforts to seek out father and facilitate contact between him and the child after
father voluntarily left the child and moved to another country for three years and
purposefully decided not to file for visitation with the child upon his return. If father had
obtained a visitation order (which he apparently knew he was entitled to do) and mother
had thereafter failed to produce the child for visits, than we would be faced with a
different situation. But that is not what happened here.
              In any event, father presented no evidence of specific attempts by him to
communicate with the child, which were directly frustrated by mother alleged conduct of
concealing the child. At trial, father testified the “only” attempts he made to find the
child in 2013, consisted of him going twice to the child’s maternal great grandmother’s
house.3 He also made some limited inquiries about the child to mother’s relatives, who
indicated they did not have any current information. Although father complains mother
did not provide him with her address or phone number, father never testified that he
actually tried to look up this information and was unable to find it, or that his failure to
file for modification of the custody order or visitation was due to his not having mother’s
address. It appears from the record father was subject to an enforceable child support
order and therefore he presumably knew which court had jurisdiction over the custody
matter. Therefore, despite his suggestions to the contrary, the record does not establish
that mother’s concealment of her contact information was the cause of father’s failure to
communicate or make contact with the child during the statutory period.


                                                            
3        On appeal, father faults mother for not responding to his visits to her grandmother’s
house in 2013, but there was no evidence mother was aware of these visits. Rather, it appears
the last such visit of which mother was aware occurred around July 4, 2009, when she was in the
hospital giving birth to her son.
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       Father unconvincingly suggests his sister’s testimony established that mother
thwarted his active attempts to communicate with the child in the year leading up to the
filing of the petition. Father’s sister primarily testified to efforts made by her and the
paternal grandmother to contact the child by calling the maternal grandmother during the
period when father was living in Mexico. According to her testimony, she and the
paternal grandmother gave up trying to contact the child three years earlier due to the
lack of response to their phone calls. Although father’s sister testified that she sent
mother a single Facebook message on father’s behalf, the evidence did not conclusively
establish that the message was sent in 2013, as father suggests on appeal. Mother
testified she received a Facebook message from father’s sister “years ago” and father’s
sister did not specifically testify that she sent the message in 2013, but simply repeated
that she only contacted mother one time on Facebook when father’s counsel attempted to
elicit testimony addressing a specific timeframe in 2013. To the extent the testimony of
mother and father’s sister conflict regarding the timing of the Facebook message, the
applicable standard of review requires us to construe the testimony in favor of the
conclusion that father left the child with the intent to abandon her, and made only token
efforts to communicate with her.
       In arguing this conclusion was unsupported by substantial evidence, father cites
Amy A., supra, 132 Cal.App.4th 63, and In re Jacklyn F. (2003) 114 Cal.App.4th 747
(Jacklyn F.) as instructive. In Jacklyn F., the facts were that the grandparents had filed a
guardianship petition, when the child had been in their care for only three days. The
child’s mother unsuccessfully contested the guardianship proceedings. The court stated
that only the guardianship petition was granted, the child’s custody was “a matter of
judicial decree, not abandonment,” (id. at p. 756) and that the mother in that case had
adequately shown an intent to retain a parental role, such as by sending the child “‘stacks’
of letters,” through the therapist for the child, and where there was confusion about her
                                              11
 
 



visitation rights. (Ibid.) This conduct did not amount to showing her intent was to leave
the child, although under different circumstances, there might be some possibility that a
parent who stayed away from a child even after court intervention, might be found to
have “left” the child, within the meaning of section 7822. (Jacklyn F., at p. 756.)
       In Amy A., supra, 132 Cal.App.4th 63, the court concluded such “different …
circumstances” were present. (Id. at p. 70.) Amy A. involved circumstances in which the
family court awarded custody of the child to the mother and allowed the father reasonable
visitation. (Id. at p. 66.) However, the father did not appear during the divorce
proceedings, nor subsequently seek modification of the custody orders, nor make efforts
to visit, nor attempt to act as a parent. This court concluded that his “repeated inaction in
the face of the custody order provides substantial evidence that he voluntarily surrendered
his parental role and thus ‘left’ [the child] within the meaning of section 7822.” (Amy A.,
supra, at p. 70.)
       In suggesting this case is more like Jacklyn F. than Amy A., father relies on a
skewed interpretation of the facts. It is essentially father’s interpretation that when he
went to Mexico to tend to his sick father, mother opportunistically obtained a judgment
awarding her sole custody of the child and thereafter concealed the child from father
while he earnestly searched for her, realizing too late court intervention would be
necessary to establish contact with the child. For reasons already discussed, the evidence
below does not support the factual scenario suggested by father’s argument. Even though
the facts here are not identical to those in Amy A., we similarly conclude that father’s
repeated inaction in the face of a known custody order dating back to 2008, provided
substantial evidence that father voluntarily left the child within the meaning section 7822,
and his failure to communicate with the child for the statutory period constituted
presumptive evidence he intended to abandon the child. The presumption was not
overcome by mother’s alleged concealment of the child or the minimal efforts to find the
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child described by father’s testimony or by his relatives’ past efforts to make contact with
the child.
       Finally, we reject father’s contention that the court erred in granting mother’s
petition under section 7822, because it was not shown to be in the child’s best interests to
terminate his parental rights in accordance with the purpose of the statute. Section 7800
provides: “The purpose of this part is to serve the welfare and best interest of a child by
providing the stability and security of an adoptive home when those conditions are
otherwise missing from the child’s life.” Relying on the reference to “adoptive home” in
section 7800, father asserts that “without commitment from the Mother’s boyfriend to
first marry the mother, and second to adopt E.C., it was an abuse of discretion to
terminate parental rights of this father who desired to support and have contact with his
daughter.” Thus, father appears to be contending it is an abuse of discretion for a court to
terminate parental rights under section 7822, when there is no evidence of a pending
stepparent adoption. This is not the law.
       In In re Marcel N. (1991) 235 Cal.App.3d 1007 (Marcel N.), where a mother
sought to terminate the parental rights of her ex-husband over their two minor children
pursuant to former Civil Code section 232, the predecessor statute to section 7822 (In re
J.W. (2002) 29 Cal.4th 200, 204), claiming he had abandoned the children for more than
one year. Former Civil Code section 232 stated the same standards for termination as
those at issue here, and stated the same “‘adoptive home’” purpose as in the present
section 7800. (Marcel N., at p. 1011.) In Marcel N., the former husband argued the
juvenile court had no jurisdiction to proceed because there were no adoptions pending.
       The court in Marcel N., quoting the California Supreme Court’s construction of
former Civil Code section 232 in a parental termination case regarding foster children,
determined that one parent’s rights could be terminated upon proper petition by the other
parent in the absence of an “‘adopting parent waiting in the wings.’” (Marcel N., supra,
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235 Cal.App.3d at pp. 1011-1012, quoting In re Laura F. (1983) 33 Cal.3d 826, 838
(Laura F.).)4 The court noted that while the stated purpose of the subject provisions was
to permit terminations where adoption was the goal, it did not prohibit such proceedings
for other purposes. (Marcel N., at pp. 1011-1013.) The court also pointed out that “if
read literally, ... proceedings could never be used to terminate the parental rights of one
parent if the second parent was providing a stable and secure home for a child” and could
raise obvious equal protection problems regarding the comparative ability of remarried
and single mothers to pursue the termination of a father’s parental rights. (Id. at p. 1013;
see also In re Randi D. (1989) 209 Cal.App.3d 624, 628 [majority holding former Civ.
Code provision “contemplates severance of the parental right ... without reference to
whether or not adoption proceedings are pending”].)
              Here, there was substantial evidence supporting the trial court’s implicit finding
that termination of father’s parental rights was in the child’s best interests. Although
mother and J.A. were not married, they had been together since 2008, the majority of the
child’s young life, and they had two children together. There was no indication mother
and J.A. had done anything other than create a stable home life for the child and her two
half-siblings. The child was reportedly doing well both emotionally and academically.
Although the child knew who father was, she had no recollection of him, regarded J.A. as
her father, and desired to have father’s last name removed from her legal name. There is
no indication in the record that the child ever wished to see father and father’s inaction
respecting the longstanding order granting mother sole legal and physical custody of the

                                                            
4      The California Supreme Court found that, despite former Civil Code section 232’s same
reference to “adoptive home” in its statement of purpose, there was no authority “for the
proposition that termination is improper unless there is an adopting parent waiting in the wings.
The statute itself imposes no duty on the superior court to make an express finding as to the
prospects for adoption of a particular child.” (Laura F., supra, 33 Cal.3d at p. 838, fn. omitted.)
 

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child, without any provision for visitation by father, was inconsistent with his stated
desire to have a relationship with the child. We find there is substantial evidence to
support the trial court’s findings and the judgment freeing the child from father’s custody
and control.
                                      DISPOSITION
       The judgment is affirmed.
 




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