Filed 7/3/13 In re Hunter B. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re HUNTER B., a Minor.
                                                                 D063416
ROBERT A.,

         Petitioner and Respondent,                              (Super. Ct. No. AN14400)

         v.

JASON B.,

         Objector and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Harry M.

Elias, Judge. Affirmed.



         Lelah S. Fisher, under appointment by the Court of Appeal, for Objector and

Appellant.

         Lloyd S. Costales for Petitioner and Respondent.
       Jason B., the biological father of Hunter B., appeals a judgment terminating his

parental rights on the basis of abandonment under Family Code section 78221 so that

Hunter can be adopted by her stepfather, Robert A. Jason contends that he did not

"leave" Hunter in the care and custody of another person and did not intend to abandon

her within the meaning of the statute. We affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Hunter, who is currently three years old, is the child of Melissa A. and Jason. The

parents met and began dating in March 2009. They moved in together two months later

and Melissa became pregnant in September 2009. Hunter was born the following June.

In early August 2010, Jason and Melissa separated and Melissa and Hunter moved out of

the couple's house and into Melissa's father's house. Jason visited Hunter regularly for

the first few weeks in August. Jason picked up Hunter from her grandfather's house and

picked up his son Nathan B., Hunter's half brother, from kindergarten. The three would

spend the afternoons and evenings together before Jason returned Hunter to Melissa.

Melissa did not allow Hunter to stay overnight with Jason because she was concerned

that Jason's medical issues (degenerative disc disease that was the result of his military

service) would cause him to go to sleep and not wake up if Hunter was crying.

       Near the end of August, Melissa asked Jason to sign a custody agreement. Jason

refused. Melissa withheld Hunter from Jason after his refusal to sign the agreement, but

did bring Hunter to Nathan's birthday party on August 28, 2010. At the party, Jason took



1      All further statutory references are to the Family Code.
                                              2
Hunter from Melissa so that Hunter could spend the rest of the weekend with him and

Nathan. Jason told Melissa that he would return Hunter to her the following Monday.

Melissa did not agree to Jason's plan. Against Melissa's wishes, Jason passed Hunter to a

friend who was nearby in a truck. Jason's friend drove away with Hunter on her lap, not

restrained in a child safety seat, while Jason held Melissa back. Jason then left with the

friend and Hunter, and Melissa called the police. That evening, Jason was arrested and

charged with kidnapping and assault.

        The following month Melissa sought and was granted a temporary restraining

order against Jason. On October 4, 2010, the restraining order was made permanent and

Melissa was awarded full custody of Hunter. Jason was granted four hours per week of

supervised visits at his expense. Jason made one child support payment in October, but

did not arrange any visits with Hunter or send her any cards, gifts or letters until June

2011. That month, he had one visit with Hunter on her first birthday and brought her a

gift.

        The same month, Melissa and Jason attended a court-ordered mediation session.

Melissa did not want the existing custody order changed and expressed fear about Jason's

ability to care for Hunter by himself. Jason told the mediator that he could not afford to

pay for supervised visits and requested unsupervised visitation rights. The mediator

recommended increasing Jason's visitation to 16 hours per week and also recommended

that the court require Jason and Melissa to agree on an unpaid supervisor. Following the

mediation, the court increased Jason's visitation as recommended by the mediator and



                                              3
modified the visitation order to allow supervision "by any mutually agreeable third party

or a professional at father's cost." (Italics added.)

       Melissa and Robert were married on June 26, 2011, and Melissa and Hunter

moved in with Robert. At that time, Robert became the sole financial provider for

Melissa and Hunter. Despite the change in the visitation order, Jason did not arrange any

visits with Hunter, pay any support or send any cards or letters to Hunter after her first

birthday. Hunter continued to see Nathan, whose mother arranged visits with Melissa.

Jason's mother sent Hunter birthday gifts and money on a few occasions for Melissa to

purchase items for Hunter. Jason testified that he also sent gifts to Hunter when Nathan

visited with her, but Melissa testified that Jason had not sent any gifts, cards or letters to

Hunter after her first birthday and that there was no indication that any gift sent by

Jason's mother had been sent on Jason's behalf.

       After his arrest in August 2010, Jason's financial situation deteriorated. He lost his

job and, although he received a modest monthly disability payment from the Veteran's

Administration, he lived out of his car from August 2011 to January 2012. Jason

eventually pled guilty to a misdemeanor as a result of the August 2010 arrest and served

45 days in jail in January and February of 2012. After his release from jail, Jason

enrolled in a veteran's assistance program, which provided housing and helped Jason

obtain additional disability benefits.

       On July 13, 2012, Robert filed a petition for freedom from parental custody and

control, seeking to terminate Jason's parental rights to Hunter under section 7822 so that

Robert could adopt her. Also in July 2012, Jason contacted the visitation supervisor to

                                               4
arrange a visit with Hunter. On the advice of her counsel, Melissa refused to agree to the

visit. In September 2012, Jason submitted a letter to the court opposing Robert's petition,

and the court appointed counsel for both Jason and Hunter. The San Diego County

Health and Human Services Agency prepared a report for the section 7822 proceeding

recommending that Jason's parental rights be terminated.

       A trial on the petition was held on December 21, 2012. Melissa, Robert and Jason

testified. At the close of the proceedings, the court granted the petition to terminate

Jason's parental rights, finding that Jason's testimony was not credible and finding by

clear and convincing evidence that the elements of section 7822, subdivision (a)(3) had

been satisfied.

                                       DISCUSSION

       A proceeding to have a child declared free from the custody and control of a

parent may be brought under section 7822, subdivision (a)(3) where the child has been

left by one parent "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." (Id., subd. (a)(3).) A

parent's "failure to provide support, or failure to communicate" with the child for a period

of one year or more "is presumptive evidence of the intent to abandon. If the parent . . .

[has] made only token efforts to support or communicate with the child, the court may

declare the child abandoned by the parent . . . ." (Id., subd. (b).) "The parent need not

intend to abandon the child permanently; rather, it is sufficient that the parent had the



                                              5
intent to abandon the child during the statutory period." (In re Amy A. (2005) 132

Cal.App.4th 63, 68 (Amy A.).)

       "The 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. (2003) 114 Cal.App.4th

747, 754 (Jacklyn F.).) A parent " 'leaves' " a child by voluntarily surrendering the child

to another person's care and custody. (Amy A., supra, 132 Cal.App.4th at p. 69; In re

George G. (1977) 68 Cal.App.3d 146, 160.) Conversely, "abandonment does not occur

when the child is taken from parental custody against the parent's wishes." (In re George

G., at p. 160.) Abandonment is a factual question that we review for substantial

evidence, keeping in mind that all of the trial court's findings must be made by clear and

convincing evidence. (Amy A., at p. 67; In re B.J.B. (1986) 185 Cal.App.3d 1201, 1211.)

       Jason maintains that the evidence shows that he did not "leave Hunter with

Melissa within the meaning of section 7822" and that the evidence was insufficient to

establish that he intended to abandon her. He contends that he did not voluntarily leave

Hunter and that his absence from Hunter's life was the result of the restraining order. He

argues that his failure to support or communicate with Hunter is excused by his inability

to afford a professional supervisor for visits and Melissa's frustration of his efforts to find

a mutually agreeable nonprofessional third-party supervisor. Jason also argues that

termination of his parental rights is not in Hunter's best interests.




                                               6
                                               I

       As Jason points out, in determining whether the minor was " 'left,' " the important

element is "the voluntary nature of a parent's abandonment of the parental role . . . ."

(Amy A., supra, 132 Cal.App.4th at p. 69.) Thus, "a parent will not be found to have

voluntarily left a child in the care and custody of another where the child is effectively

'taken' from the parent by court order [citation]; however, the parent's later voluntary

inaction may constitute a leaving with intent to abandon the child [citation]." (In re

Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 504; see also Amy A., at p. 70

[parent's "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"]; In re Jack H. (1980) 106 Cal.App.3d 257, 264; In re

Jacqueline H. (1979) 94 Cal.App.3d 808, 815-816.) "Simply stated, 'nonaction of the

parent after a judicial decree removing the child may convert a [judicial] "taking" into a

"leaving" [of a child by the parent].' " (In re Marriage of Jill & Victor D., at p. 504.)

       Jason relies on Jacklyn F. to support his contention that he did not voluntarily

leave Hunter. In Jacklyn F., the paternal grandparents filed a petition for guardianship in

October 1998, three days after the mother left the seven-year-old minor with them.

(Jacklyn F., supra, 114 Cal.App.4th at p. 749.) The following month, the trial court

granted temporary guardianship of the child to the grandparents, against the mother's

wishes. (Ibid.) In April 1999, the grandparents obtained a restraining order against the

mother. Although the mother was permitted limited visitation under that order, she

visited her daughter just once that year. (Id. at p. 750.) The mother testified that she

                                               7
"was told she was not allowed to have any contact with the minor except by mail." (Id. at

p. 752.) In 1999 and during the following two years, the mother sent " 'stacks' of letters"

to her daughter, which the grandparents withheld from the minor. (Id. at pp. 756, 752.)

In 2002, the mother filed a request for supervised visitation, telephone contact and

counseling with her daughter. The grandparents filed a competing petition to terminate

mother's parental rights under section 7822. The trial court granted the grandparents'

petition and terminated the mother's parental rights. (Id. at p. 753.)

          On appeal, the court held that the mother had not left her child within the meaning

of section 7822. (Jacklyn F., supra, 114 Cal.App.4th at p. 756.) The court concluded

that the mother had not " 'left' " the child, but instead, that "the minor's custody status

became a matter of judicial decree, not abandonment." (Ibid.) In reaching this

conclusion, the Jacklyn F. court emphasized the mother's attempts to remain in her

daughter's life by frequently sending her letters after the entry of the judicial custody

order. The court pointed out, however, that under different circumstances "it might be

proper to conclude that a parent has 'left' a child . . . despite court intervention . . . ."

(Ibid.)

          Jason's contact with Hunter was not foreclosed by the issuance of the restraining

order. The initial order provided Jason with four hours of supervised visitation per week

at his expense. Jason did not avail himself of the opportunity to visit Hunter until his

mother paid for a supervised visit on Hunter's first birthday, nearly eight months after the

issuance of the order. After this visit, the court modified the restraining and custody

order to provide for 16 hours of supervised visitation per week, and permitted the

                                                 8
supervisor to be a nonprofessional third-party agreed to by Jason and Melissa. Jason did

not arrange any visits with Hunter over the course of the next year after the order was

modified.

       Jason acknowledges that he did not see Hunter and that he provided no child

support for her in the year following her first birthday. He contends that he did send gifts

to Hunter through Nathan, and that Melissa's unwillingness to agree to a third-party

supervisor and his financial circumstances prevented him from seeing his daughter.

However, the trial court was entitled to credit Melissa's testimony that she did not receive

any gifts for Hunter from Jason. (Amy A., supra, 132 Cal.App.4th at p. 71.) Although

Jason may have been unable to afford a professional supervisor for visits with Hunter,

there is no evidence in the record that would support his contention that Melissa

frustrated his ability to visit Hunter at no cost by refusing to agree to a third-party

supervisor. At trial, Jason's counsel asked Melissa just one question concerning this

issue: "Why is it that you couldn't agree on somebody, a family member?" Melissa's

answer to this question, "No, uh-huh," was not responsive and does not support Jason's

contention that Melissa was unwilling to agree to a third party to supervise visits.

       Jason also relies on his own testimony that he believed he could not contact

Melissa directly to discuss an appropriate third-party supervisor without violating the

restraining order, and that he did not know how to ask the court for a modification.

However, the order provided for "brief and peaceful contact as required for court-ordered

visitation" of Hunter. Further, Jason recognizes that the restraining order did not



                                               9
preclude him from discussing this issue with Melissa, and he presented no evidence that

Melissa prevented him from doing so.

       While the restraining order limited Jason's contact with Hunter, Jason failed to

arrange visits, send letters or cards to Hunter or pay any support. This voluntary inaction

on his part supports the trial court's finding that Jason "left" Hunter within the meaning of

section 7822.

                                              II

       Jason argues that even if there is substantial evidence to support the trial court's

determination that he left Hunter, we should reverse the order terminating his parental

rights because there was insufficient evidence to support the court's finding that he

intended to abandon her.

       As we previously discussed, the "failure to provide support, or failure to

communicate is presumptive evidence of the intent to abandon." (§ 7822, subd. (d).)

Jason does not dispute that he had no direct communication with Hunter or that he

provided no child support for her during the one-year period preceding Robert's filing of

the petition. Jason argues, however, that the evidence shows that he never intended to

abandon Hunter during his year-long absence from her life because during that year, he

was "doing everything he could to get back on his feet financially. . . ." Citing In re Baby

Boy M. (1990) 221 Cal.App.3d 475, 482 and In re Cattalini (1946) 72 Cal.App.2d 662,

667, Jason also contends that his inability to pay support rebuts any presumption of intent

to abandon Hunter based on his failure to do so.



                                             10
       In its ruling, the juvenile court looked to the evidence of Jason's actions (or

inactions) in concluding that the element of intent to abandon was established. Jason's

statements that he did not intend to abandon Hunter are belied by the undisputed facts

that Jason did not take any steps to exercise his visitation rights or to support Hunter for

the statutory period. This constitutes sufficient evidence to support the court's findings

that he left Hunter for a period of more than one year and that he intended to abandon

her. (See Amy A., supra, 132 Cal.App.4th at pp. 71-72; In re Marriage of Jill & Victor

D., supra, 185 Cal.App.4th at p. 504.)

       With respect to Jason's inability to pay, In re Baby Boy M. does not foreclose the

trial court's finding of abandonment. Jason relies on that court's statement that " 'failure

to pay for maintenance when no demand therefor[e] has been made [citations], or no

ability to provide is shown [citations], by itself, does not prove an intent to abandon.' "

(In re Baby Boy M., supra, 221 Cal.App.3d at p. 482.) However, it is not Jason's failure

to pay support, by itself, that supports the court's finding of abandonment, but also his

failure to communicate at all with Hunter after her first birthday.2 In re Cattalini

similarly does not support Jason's argument that his inability to pay precludes a finding of

abandonment. In that case, it was the mother's refusal to accept support from the father,

not his inability to pay, that rebutted the presumption of abandonment. (In re Cattalini,

supra, 72 Cal.App.2d at pp. 666-667.)


2      Additionally, In re Baby Boy M. did not concern whether the parent had paid
support during the statutory period. Rather, the case involved the return of the child to
her natural parents who acted to reclaim their son from his prospective adoptive parents
within six months of his birth. (In re Baby Boy M., supra, 221 Cal.App.3d at p. 483.)
                                              11
                                              III

       Jason argues that even if the court's abandonment finding is supported by

sufficient evidence, termination of his parental rights is not in Hunter's best interests.

Section 7890 provides that when a court hears a petition to free a child from the custody

and control of his or her parent, "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." (See also

§ 7801 [mandating liberal construction of the law in freedom from parental custody and

control proceedings "to serve and protect the interests and welfare of the child"].)

       The evidence supports the court's finding that adoption is in Hunter's best interests.

Hunter is happy and healthy in Melissa and Robert's home. She views Robert as her

parent and calls him "daddy." She has not seen Jason since her first birthday. The social

worker who assessed the situation believed that it was in Hunter's best interests to

terminate Jason's parental rights. Jason introduced no evidence to the contrary.

                                       DISPOSITION

       The judgment is affirmed.


                                                                                  AARON, J.

WE CONCUR:



MCINTYRE, Acting P. J.



O'ROURKE, J.


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