Filed 2/13/14 In re Daniel R. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re DANIEL R., a Minor.


MEGAN N. R.,                                                                                F067652

         Petitioner and Respondent,                                       (Super. Ct. No. S-1501-AT-3059)

                   v.
                                                                                         OPINION
JOSE R.,

         Objector and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
         Carol A. Koenig, under appointment by the Court of Appeal, for Objector and
Appellant.
         No appearance for Petitioner and Respondent.
                                                        -ooOoo-

         *Before     Cornell, Acting P.J., Detjen, J. and Hoff, J.†
         †
       Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Appellant Jose R. (father) appeals from the trial court’s order terminating his
parental rights pursuant to Family Code section 7822.1 He contends there was
insufficient evidence to support the findings that he “left” his child and did so with the
intent to abandon.
       We disagree and affirm the court’s order.
                         FACTS AND PROCEDURAL HISTORY
       In 2005, father and Megan R. began dating. At the time, father was 25 years old
and Megan was 16 years old. When Megan’s parents found out about the relationship,
they told Megan she could not see father and continue to live in their home. Megan
chose to move in with father, who still lived with his wife. Megan became pregnant, and
father and Megan’s son Daniel R. was born in December 2006. The relationship lasted
just under two years. Megan reported that the relationship came to end when father’s
wife became angry with father and called the police. Father was arrested for having sex
with a minor, and Megan was arrested for resisting arrest.
       Following the incident with the police, Daniel was placed in foster care for a short
time. Megan went back to live with her parents, and Daniel was returned to her care.
Daniel was extremely young the last time father had contact with him. Mother reported
that Daniel was about three months old the last time father saw Daniel. Father believed
the last time he saw Daniel was in January 2007, when Daniel would have been less than
two months old. Around Christmas 2007, father’s girlfriend (the current girlfriend)
delivered a gift for Daniel and asked to take photos of Daniel. Father never provided any
support for Daniel.
       Sometime in 2007, father filed a paternity case regarding Daniel. In the family
law case, Megan was granted sole custody of Daniel in May 2008.



       1Subsequent    statutory references are to the Family Code unless otherwise noted.



                                             2.
       On July 23, 2008, father was convicted of unlawful sex with a minor based on his
relationship with Megan. At the sentencing hearing, the court stated: “[Father] is
ordered to have no contact with the victim [Megan], with the victim’s family; however,
that—Court recognizes that there may be familial issues that supersede this, and I will
defer to the Family Law Court for purposes of those proceedings.” Father was sentenced
to one year in county jail, but he was released from custody on October 29, 2008.
       On August 4, 2008, in the family law case, Megan was again awarded sole
custody of Daniel, and the court ordered that visits between father and Daniel “shall be as
mutually agreed or until the father comes back into court for orders.”
       After father was released from jail, the terms of his probation required him to stay
away from Megan and all minors. In addition to Daniel, father has two other children,
Joseph, who is about two years older than Daniel and is his son from a previous marriage,
and Mariah, who is about three years younger than Daniel and is his daughter with the
current girlfriend. Thus, the probation terms prohibited him from seeing any of his three
children.
       Father filed a motion to modify the probation terms so he could see his other two
children, but he did not include Daniel in the modification request. On March 6, 2009,
the trial court modified father’s probation terms to allow him to have contact with his
other children as long as a responsible person was present.
       On August 26, 2011, Megan filed a petition to declare Daniel free from the
parental custody and control of father under section 7822. She alleged that father had
never established a relationship with Daniel and failed to support him financially. She
alleged that father was awarded visitation as mutually agreed upon on August 8, 2008,
but he never sought visitation. Father objected to the petition.
       On April 19, 2013, the court held a trial on the petition. Megan testified that
father had never supported Daniel financially and had not visited with him since Daniel
was three months old. Daniel was six-and-a-half years old at the time of trial. Father


                                             3.
never contacted her to ask for visitation with Daniel. He never sent Daniel any letters or
photos. The only gift he ever gave Daniel was a present his girlfriend delivered when
Daniel turned one. Megan is married and her husband intends to adopt Daniel if the
petition is granted.
       In 2007, father sent Megan letters in which he discussed Megan, father, and
Daniel being a family. Megan did not understand the letters to be requests to see Daniel.
Instead, she believed “he was trying to make everything sound nice so [she] wouldn’t
testify against him in [the] criminal case.” Regarding the criminal case, Megan said her
parents called the police after Megan moved in with father.
       At the time of trial, Megan had the same phone number and address as when father
knew her. So if he remembered either of them, he would know how to contact her.
Megan worked at the deli section of a Wal-Mart. In May 2011, she saw father at the
Wal-Mart; he was at the cash registers. A few weeks or months later, the current
girlfriend tried to approach Megan at the deli. Megan did not talk to the current
girlfriend. Megan did not recall father attempting to talk to her. Megan thinks father is
unstable and a criminal. She believes that “if he had contact with [her] son[,] … he
would be a flight risk.”
       Father called as witnesses two attorneys who had represented him in the past.
Dominic Eyherabide, an attorney in the Public Defender’s office, represented father in
two or three criminal cases, including the case charging father with unlawful sexual
intercourse with a minor in which Megan was the victim. (Eyherabide recalled there
were three separate filings against father, which included charges of unlawful sexual
intercourse and domestic violence and involved “multiple” victims. Father entered a plea
on the charges related to Megan, and the remaining cases were dismissed.
       Soon after he got out of jail on probation, father contacted Eyherabide. He asked
if the probation terms could be modified so he could have visitation with one or more of
his children. Eyherabide advised father not to ask for a modification too soon and


                                            4.
suggested the court would like to see his good behavior on probation first. Eyherabide
advised father not to seek visitation with Daniel because his mother was the victim in the
criminal case and father was ordered to stay away from her. He testified that, in his
experience, probationers are vulnerable to probation violations if they try to have contact
with children under those circumstances. Eventually, Eyherabide filed a motion on
father’s behalf to modify probation terms as to two of father’s children.
       Father also wanted to ask the court to reduce the felonies to misdemeanors and
terminate probation. Eyherabide went back to court twice in 2010 at father’s behest,
although Eyherabide said, “I think I kept putting him off a little bit.” But “[Father]
wanted to clean his record, get off probation get away from the stay-away orders. And
then he could, you know, [have] his rights reestablished.” The requests were opposed by
the district attorney’s office. Eyherabide said one request was withdrawn after the court
indicated that it would be denied. It appears from his testimony that Eyherabide made
another request to reduce the felony charges to misdemeanors after father completed
probation, and this request was granted.
       In cross-examination, Eyherabide testified that he never told father not to seek
visitation with Daniel. He agreed that, if father had asked him to do so, he would have
filed a motion to modify the probation terms to allow father to see Daniel.
       Ira Stoker represented father in filing the paternity action regarding Daniel. Stoker
could not recall when the case was initiated, but toward the end of the family law case,
father was taken into custody on the charge of unlawful sex with a minor. The result of
the family law case was that father had visitation with Daniel. Later, after father got out
of jail, he called Stoker to try to “reinstate or initiate custody/visitation” with Daniel.
Father could not pay the retainer fee for Stoker’s services, however.
       Father testified that he never had any intention of not seeing Daniel again. He
admitted that he never paid support for Daniel. He had not been employed for years. In




                                               5.
2007 and 2008, father wrote letters to the current girlfriend in which he expressed his
desire to see all his children.
       After he got out of jail, father wanted his probation terms modified so he could see
all his children. He only sought modification with respect to his other two children.
Asked whether it was true that he did not include Daniel in his modification request,
father responded, “Upon my lawyer’s advice, he recommended me to.”
       Father could not afford Stoker’s services for his family law case regarding Daniel.
He tried to use a service called “We the People” to help him file court papers. Father
tried to file paperwork asking for visitation with Daniel, but, he said, “I believe
something in the paper came back incomplete or something. I don’t recall.” Then he
called Stoker. Father was asked if, from 2008 to 2011, he ever successfully filed
anything with the court asking for visitation with Daniel. He responded, “Well, I ended
up at one point paying Mr. Stoker to help me in this matter, but I don’t know what
happened. I got postponed or something because I had a criminal case pending.”
       At the time of trial, the current girlfriend had known father for six years. She
testified that father always talked about Daniel. The current girlfriend tried to talk to
Megan at the deli at Wal-Mart, but Megan would not talk to her. It was father’s idea that
the current girlfriend talk to Megan; he could not talk to her because he was on felony
probation. The current girlfriend was present when father’s mother tried to call Megan’s
family once in 2007, but no one answered.
       In his closing statement, Megan’s attorney told the court that the standard for
granting the petition had been met as the record showed father never paid a penny of
support and had no visitation since the child was three months old. He asserted that
being in jail or on felony probation was no defense and father could have sought a
modification of his probation terms to allow him to see Daniel (as he had done for his
other two children) or asked for visitation with Daniel from the family court.




                                              6.
       Father’s attorney argued that father’s statements to his attorneys and the letters he
wrote to the current girlfriend “where he states intent to maintain a family” showed father
never “formed the intent not to have a relationship with his child,” but “[c]ircumstances
have prevented it .…”
       Counsel appointed to represent Daniel supported termination of father’s parental
rights. She argued, “It appears to me that [father] will take the first step to try to reach
out to the children, but the second a roadblock comes up in his [way] that makes it
difficult for him, he doesn’t want to proceed beyond that.”
       On June 4, 2013, the court issued a written ruling granting Megan’s petition. The
court explained:

       “The failure to provide support or failure to communicate is presumptive
       evidence of the intent to abandon. (§ 7822, subd. (b).) In this case there is
       no dispute that [father] has failed to do either since 2007 and, under
       section 7822(b), there is a presumption of abandonment. The issue is
       whether [father] has presented evidence to rebut the presumption.

       “In determining the issue of whether a parent has ‘left’ his or her child with
       another person, the focus is ‘on the voluntary nature of a parent’s
       abandonment of the parental role rather than on physical desertion by the
       parent.’ [Citations.] [N]onaction in the face of a judicial custody order
       may result in a finding the parent ‘voluntarily surrendered’ his or her
       parental role .…

       “The case is similar to [Adoption of] Allison C. [(2008) 164 Cal.App.4th
       1004 (Allison C.)] When Allison was six months old, Allison’s father
       struck Allison’s mother while the mother was holding Allison. The mother
       moved out and cut off contact with Allison’s father. The father was
       incarcerated for two years for domestic violence. When released, he began
       seeing Allison at a relative’s house every two weeks without the mother’s
       knowledge. After seven months of this, the mother discovered this and
       stopped the visitation. Shortly afterward, father was incarcerated for
       burglary. The father sent Allison cards from prison until the mother
       successfully requested that prison officials stop him from contacting her.
       Two years later, the father was released from prison and the court issued a
       restraining order against him that permitted him to have weekly supervised
       visitation with Allison. However, father’s parole officer prohibited the
       visits after mother asked the parole officer to have father drug tested twice


                                              7.
      weekly to ensure Allison’s safety. The father’s parole conditions still
      permitted him to contact Allison by telephone and mail with the parole
      officer’s approval, but he never sought approval. Another year passed with
      no contact and the mother’s new husband filed a petition to terminate the
      father’s parental rights under section 7822. The trial court found the father
      had abandoned Allison by failing to communicate with her or provide
      support for the statutory period. The Court of Appeal affirmed. In holding
      that there was sufficient evidence to support the finding of an intent to
      abandon, the court observed, among other things, that the father failed to
      seek permission to contact Allison by telephone or mail while he was on
      parole.

      “[Father] contends that he cannot have had the subjective intent to abandon
      Daniel, in part, because he was on felony [probation] with [a] condition
      prohibiting his contacting [Megan] or seeing Daniel. However, by his
      action he pled to the charges that resulted in the conviction and the
      subsequent conditions of [probation]. It is similar [to] the claim that has
      been rejected by the courts that incarceration is in and of itself a defense to
      abandonment.… [Father] also contends that his contacts with his public
      defender and his family law attorney evidence his subjective intent to
      maintain contact with Daniel and, but for the probation conditions, he
      would have been able to pursue visitation with Daniel. However, the
      evidence does not support that claim.

      “Subsequent to the commencement of his probation, [father] did have his
      probation conditions modified to see his other children.… While it may be
      argued that these steps were on the advice of his public defender, it is also
      clear that [father] failed to … pursue any modification of the Family
      Court’s orders. The sentencing judge had already indicated his willingness
      to defer to the Family Court and [father’s] attorney had been present when
      the Family Court entered an order regarding visitation. While [father’s]
      family law attorney testified that [father] was unable to pay the necessary
      retainer, it was also established that [father] had instituted the paternity
      action in 2007 and made his initial filings in pro per with the assistance of a
      typing service.

      “In reviewing these steps that [father] took and in light of the failure to take
      any action other than to seek a termination of his probation, the court
      concludes that these steps are token and are insufficient to overcome the
      presumption of abandonment.”
      On June 17, 2013, the court filed a judgment declaring Daniel free from father’s
parental custody and control. Father filed a notice of appeal on July 18, 2013.

                                             8.
                                      DISCUSSION
       Section 7822 allows the court to declare a child free from the custody and control
of a parent who “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)(3).) “[F]ailure to provide support[] or failure to communicate is presumptive
evidence of the intent to abandon.” (§ 7822, subd. (b).) If a parent has “made only token
efforts to support or communicate with the child, the court may declare the child
abandoned .…” (Ibid.)
       We apply the substantial evidence standard of review to the trial court’s findings
made under section 7822. (Allison C., supra, 164 Cal.App.4th at p. 1010.) “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.”’ [Citation.]” (Id. at pp. 1010-1011.) The appellant has the
burden of showing the trial court’s finding or decision is not supported by substantial
evidence. (Id. at p. 1011.)
       “[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.]” (Allison C., supra, 164
Cal.App.4th at p. 1010.)
       In this appeal, father contends substantial evidence did not support the court’s
findings that (1) father “left” Daniel and (2) he had the intent to abandon him. Father
admitted that he has not communicated with Daniel since 2007 and has never supported
him financially.




                                             9.
       As the trial court correctly stated, “[i]n determining the threshold issue of whether
a parent has ‘left’ his or her child, the focus of the law is ‘on the voluntary nature of a
parent’s abandonment of the parental role rather than on physical desertion by the
parent.’ [Citations.]” (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491,
504 (Marriage of Jill & Victor D.).) While “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 …, the parent’s later voluntary inaction may
constitute a leaving with intent to abandon the child [citation].” (Ibid.)
       Father asserts that “careful review of the available evidence reveals that there was
not substantial evidence that [father] left Daniel for a period of one year .…” To support
this assertion, father points to evidence of actions he took in each year of Daniel’s life. In
2007, father filed a paternity action, wrote letters to Megan, and had the current girlfriend
deliver Daniel a gift at the end of the year. Therefore, he claims, there can be no
“leaving” in 2007. In 2008, he filed papers for visitation on his own but they were
returned as incomplete. Also in this year, the family law court granted Megan custody of
Daniel but allowed visitation as mutually agreed, and father was convicted of having sex
with a minor and ordered to stay away from Megan and all minors.
       Then from 2008 through 2011, father was prohibited from contacting Megan, her
family, or Daniel by the terms of his probation. He acknowledges that he did not ask to
modify his probation terms with respect to Daniel.
       We agree with the trial court that this case is similar to Allison C., supra, 164
Cal.App.4th at page 1004. Since the trial court succinctly described the relevant facts of
Allison C. in its written decision, we will not summarize the facts again. In Allison C.,
the father argued that his incarceration was involuntary and that the mother “tried ‘at
every turn to cut off any contact between Father and his daughter,’” and, as a result, there
was insufficient evidence that he “left” Allison with her mother. (Id. at p. 1011.) The
Court of Appeal rejected the father’s argument, observing that, by his voluntary act of


                                              10.
domestic violence (which led to his incarceration), the father left Allison in the mother’s
care and custody. Thereafter, he never sought to take parental responsibility for Allison’s
care. (Id. at p. 1012.) Even when the father did visit Allison at his relative’s house, “he
did so secretly, rather than seeking custody or visitation rights.” (Ibid.) Finally, the
“[m]other’s efforts to curtail father’s communication with Allison … [did] not negate the
reality he never sought to take custody or care of the child after [the mother moved out].”
Thus, the father “voluntarily abdicated the parental role,” and there was sufficient
evidence to find that the father left Allison in her mother’s care and custody for more
than one year. (Ibid.)
       We recognize that, in the present case, unlike in Allison C., father did seek
visitation with Daniel through the family law court, initiating a paternity case in 2007. In
fact, he obtained a court order allowing visitation as “mutually agreed” in August 2008.
Father, however, never sought visitation with Daniel pursuant to the court order. He
argues that he could not see Daniel because of his probation terms, but, like the domestic
violence and other criminal acts in Allison C., it was father’s voluntary act of engaging in
an unlawful sexual relationship with Megan that led to his incarceration and the
probation terms that he stay away from Megan and all minors. Father never sought to
have the probation terms modified so he could have a relationship with Daniel even
though the sentencing court indicated that it would defer to the family law court on the
issue of contact with Daniel. (See Allison C., supra, 164 Cal.App.4th at pp. 1008, 1012
[father never sought custody or visitation and never tried to obtain parole agent’s prior
approval for contact with child].) Nor did father ever provide any financial support for
Daniel. This was sufficient evidence for the court to determine that, at least after August
2008, father voluntarily abdicated the parental role and left Daniel in Megan’s care and
custody.
       Father claims that his failure to seek modification of his probation terms so he
could have contact with Daniel cannot be considered evidence of parental inaction


                                             11.
because he relied on the advice of an experienced public defender. We are not
persuaded. Father knew it was possible to modify the probation terms, and he
successfully modified the terms as to his other two children. Eyherabide never told father
not to seek visitation with Daniel, and he testified he would have filed a modification
request for Daniel if father had asked him to do so. Eyherabide also testified that father
requested that Eyherabide seek reduction of father’s felony charges to misdemeanors.
Eyherabide filed two such requests, although the attorney “kept putting [father] off a little
bit,” suggesting that father was able to be persistent with his attorney when there was
something he wanted. This, in turn, shows that father did not always simply follow the
advice of his public defender. In sum, the trial court was not precluded from considering
the fact that father did not seek modification of his probation terms as to Daniel in
determining whether he “left” Daniel, and there was sufficient evidence to support the
finding that father did leave Daniel within the meaning of section 7822. (See Marriage
of Jill & Victor D., supra, 185 Cal.App.4th at pp. 505-506 [father’s inaction in face of
court order restricting contact with children, including not seeking modification of order
for over three years, was substantial evidence father left children within meaning of
§ 7822].)
       Father next argues that there was insufficient evidence of father’s intent to
abandon. We disagree. As the trial court correctly noted, a parent’s failure to provide
support or to communicate with his child is presumptive evidence of the intent to
abandon. (§ 7822, subd. (b); see Allison C., supra, 164 Cal.App.4th at p. 1013 [father’s
failure to communicate with child coupled with nonsupport sufficient to show intent to
abandon].) Since father did not support Daniel at any time and did not communicate with
Daniel after 2007, the issue for the trial court was whether father presented evidence to
rebut the presumption of intent to abandon.
       The question of intent, including whether father overcame the statutory
presumption of intent to abandon, was a question of fact for the trial court. (Marriage of


                                              12.
Jill & Victor D., supra, 185 Cal.App.4th at p. 506.) Father need not have intended to
abandon Daniel permanently; it is sufficient that he intended to abandon him during the
statutory period. (Ibid.)
       Father claims he was “tenacious in his desire to have visitation of Daniel, but one
attorney wouldn’t file the papers, and he could not afford the fee for the second attorney.”
It is not true, however, that Eyherabide “wouldn’t file the papers.” He testified that he
would have requested a modification of the probation terms as to Daniel if father had
asked him to. In addition, father’s hazy testimony about his efforts in the family law case
did not necessarily demonstrate tenacity. (He testified, “I believe something in the paper
came back incomplete or something. I don’t recall.” Asked what he did in the family
court matter from 2008 to 2011, he testified that he paid Stoker, “but I don’t know what
happened.” The trial court determined that the steps father took were insufficient to
overcome the presumption of intent to abandon. We cannot say the evidence compelled a
finding that father rebutted the presumption of intent to abandon as a matter of law. (See
In re I.W. (2009) 180 Cal.App.4th 1517, 1528 [where appellant had burden of proof at
trial, question for reviewing court is whether evidence compels finding in favor of
appellant as matter of law].) In other words, there was sufficient evidence for the trial
court to determine that father intended to abandon Daniel for the statutory period.
                                      DISPOSITION
       The trial court order is affirmed.




                                            13.
