Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. A53282, Cynthia A. Bashant, Judge.
BENKE, Acting P. J.
Lisa B. appeals a judgment terminating her parental rights to Chloe on the basis of abandonment. (Fam. Code, § 7822.) Lisa contends substantial evidence does not support the juvenile court's finding of abandonment and the court did not give full faith and credit to a Tennessee court's custody order. We affirm.
All statutory references are to the Family Code.
FACTS
In April 1999 Lisa gave birth to Chloe in San Diego. Corey T. is Chloe's father although Lisa was married to another man at the time. Corey was at the hospital for Chloe's birth, but his name is not on Chloe's birth certificate. At first, Lisa and Chloe lived with Lisa's husband and her four other children.
In February 2000 Lisa moved her family to Missouri. Lisa told Corey that she was taking Chloe with her to Missouri.
In January 2001 Lisa brought Chloe to San Diego for a visit. Chloe visited Corey and met his fiancé, Sabrina T., whom Corey later married.
After Lisa and Chloe returned to Missouri, arrangements were made for the paternal aunt and the paternal grandfather to bring Chloe to Tennessee for a visit starting March 27. The one-week visit went well, and everyone agreed that Chloe should stay a second week. Lisa and the paternal aunt talked on the telephone every other day. Lisa had decided to move her family to Oklahoma temporarily for an employment opportunity before the two weeks were up, and it was decided that plans to return Chloe would be made the following week. However, Lisa's vehicle broke down in Oklahoma, and the family was stranded. The paternal aunt and Lisa talked on the telephone once while Lisa was in Oklahoma. This was the last contact between Lisa and the paternal aunt until November or December.
Meanwhile, the paternal grandfather had filed a petition for temporary guardianship of Chloe in Tennessee. On May 4 the Juvenile Court of Weakley County, Tennessee granted the grandfather's petition. The order stated that Lisa's whereabouts were unknown and could not be ascertained.
Lisa's family returned to Missouri in May or June after the car was repaired. Lisa, who was pregnant with twins, was on bed rest. According to Lisa, she attempted to have friends and relatives pick up Chloe, but the paternal aunt would not agree to Lisa's proposals. The paternal aunt stopped taking Lisa's telephone calls. When Lisa reached the paternal grandfather on the telephone, he told her that he had Chloe and was keeping his granddaughter for the summer. In September the paternal aunt took Chloe to San Diego to visit Corey and Sabrina. In October Lisa gave birth to twins. The paternal aunt refused Lisa's request to return Chloe to her.
In February 2002 Chloe began living with Corey and Sabrina in San Diego. The following month, Corey and Sabrina married.
In March Lisa petitioned the Tennessee court for custody of Chloe. Corey and the paternal grandfather filed a counter petition for custody. On May 20 the Tennessee court gave custody of Chloe to Corey and authorized a two-day visit for Lisa to enable her and Chloe to reacquaint themselves. The two-day visit was to be followed by a one-week visit in Missouri. Further, the Tennessee court ordered the parties to arrange visits between Chloe and Lisa and split the costs of transporting Chloe to and from the visits. The court ordered that Lisa was to have three-week summer visits and one-week Christmas visits with Chloe starting in 2003.
In June Lisa met Chloe at the paternal grandfather's home in Tennessee for the two-day reacquaintance visit. Chloe, who was three years old, was scared and cried uncontrollably when she saw Lisa; it was the first time they had been together in more than one year. At one point, Chloe told Lisa to "go home and leave me alone." After a discussion with Corey, Lisa suggested the visits be postponed until Chloe was older and could understand; Lisa agreed to wait until Chloe was five years old. Under the agreement, Lisa would skip her visit in the summer of 2003 and wait until the summer of 2004 to start the visits. During the next six months, Lisa communicated twice with Chloe by sending a card and a present.
In March 2003 Lisa was planning her wedding and asked Corey to allow Chloe to attend and be a flower girl. According to Lisa, at the last moment, Corey refused to let Chloe travel to the wedding, saying she was too young to travel without him. Corey and Sabrina stated that Lisa was to arrange for her mother, who lived in San Diego, to escort Chloe on the plane, and they had asked Lisa to have her mother meet them first. Corey and Sabrina were never contacted by Lisa's mother. In 2003 Lisa telephoned Chloe on her birthday in April, during holidays and at Christmas.
In 2004 Lisa requested her summer visit, but it did not take place. According to Lisa, Corey and Sabrina said Chloe was too young to travel. Corey and Sabrina stated they agreed to the visit, but Lisa did not make the necessary arrangements and they could not contact her. In December Lisa requested a visit with Chloe. Sabrina was due to deliver a baby and suggested a visit during the spring break of 2005. Lisa agreed. The spring visit did not occur.
In the summer of 2005 Corey and Sabrina were planning to visit their relatives in Tennessee. Sabrina tried to contact Lisa to arrange a visit with Chloe in Tennessee, but Lisa's telephone was disconnected.
In early 2006 Lisa telephoned Corey and Sabrina to request a visit with Chloe in the summer of 2006. In March 2006 Corey and Sabrina sent Lisa a notarized letter inviting her to come to San Diego and reacquaint herself with Chloe before a summer 2006 visit in Missouri was discussed.
On May 4 Lisa registered the Tennessee court's 2002 order with the San Diego County Superior Court. On June 9 Sabrina filed a stepparent adoption request and petition for freedom from parental custody and control.
In July while Corey and Chloe were in Tennessee, Lisa traveled to Tennessee and filed a petition for contempt against Corey for not following the 2002 custody and visitation order. In pertinent part, Lisa alleged that Corey has failed "to allow, cooperate or communicate with the petitioner to allow petitioner to enjoy visitation with her natural daughter as provided by the count order [and] the minor child is currently in Weakley County and the petitioner wishes to have visitation with the child, but the respondent, Corey [T.] refuses to allow the visitation." On August 1 the Tennessee court heard the contempt petition. Pursuant to an agreement of the parties, the Tennessee court dismissed the contempt petition, acknowledged that Sabrina would dismiss her adoption action in California, ordered Lisa's summer visit with Chloe was to continue until August 22, when Chloe would return to California. The court also ordered the summer and Christmas visitation provisions of the 2002 order shall remain in effect.
On August 15 the juvenile court in San Diego held a hearing on Sabrina's stepparent adoption motion. Lisa was not present but was represented by appointed counsel. The court set the matter for trial and advised counsel that it would confer with the Tennessee court regarding jurisdiction. Subsequently, Sabrina's counsel filed a request to dismiss the stepparent adoption pursuant to the Tennessee order, but withdrew the request. In September the court discussed the case with the Tennessee judge and advised counsel the Tennessee judge had conceded California had jurisdiction over the case.
The record reflects that Sabrina filed a motion to dismiss the stepparent petition for adoption and then withdrew it. The face of the petition reflects a handwritten note stating "petitioner no longer wishes to request dismissal" and further states the court would decide the ultimate issue involved in the petition at the contested hearing to be held on October 12, 2006. At the October 12 hearing, the court stated it "did not" grant Sabrina's request for dismissal. We do not believe this language presents an ambiguity in the record as to whether Sabrina withdrew her request to dismiss her petition. It is clear from the record that the trial court in San Diego did not want the petition dismissed until she had an opportunity to speak with the court in Tennessee. At the next hearing on October 15, the trial judge stated she spoke to the Tennessee judge, who acknowledged that he was relieved California had taken jurisdiction. The Tennessee judge was concerned Tennessee had no jurisdiction at the time its orders were made. It was after speaking with the Tennessee judge that the court declined to dismiss the petition and went on to decide the ultimate issues in the case.
Meanwhile, Chloe had a five-week visit with Lisa and her stepsiblings in Missouri. Chloe returned to San Diego on August 23. Chloe told the social worker that she had fun at Lisa's house and enjoyed visiting Lisa. Chloe said Lisa was nice and she wanted to visit her again. Chloe also had a 10-day visit with Lisa's family in Missouri during the Christmas holidays.
After several continuances to ensure compliance with the Indian Child Welfare Act (25 U.S.C. § 1902 et seq.), the stepparent adoption trial took place on March 29, 2007. The social worker recommended the petition be denied. The court granted the petition, finding that Lisa had abandoned the child within the meaning of section 7822 and made only token efforts to remain in touch with Chloe.
DISCUSSION
I. Abandonment Issue
Lisa contends the trial court erred by finding she had abandoned Chloe. The contention is without merit.
On review, we determine whether substantial evidence supports the trial court's findings. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) We consider the entire record in the light most favorable to the judgment and determine whether it contains substantial evidence─i.e., evidence that is reasonable, credible and of solid value─to support the court's finding. (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 931.) We accept evidence favorable to the respondent as true and disregard evidence that is unfavorable as not having been accepted by the trier of fact. (Ibid.)
Section 7822 provides in pertinent part:
"(a) A proceeding . . . may be brought 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.
"(b) 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 . . . ."
The three elements of abandonment for purposes of section 7822 are: (1) a parent leaves his or her child in the care and custody of another person for the prescribed period of time, (2) without any provision for support or without communication for the parent, and (3) the parent acts with the intent to abandon the child. (See In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) The juvenile court's finding of abandonment must be supported by clear and convincing evidence. (§ 7821.)
Section 7822 applies only when a parent has by voluntary action "left" his or her child in the care and custody of another person with the intent to abandon the child. (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.) In this context, the term "left" connotes "voluntary action." (In re Amy A. (2005) 132 Cal.App.4th 63, 69.)
Thus, the threshold issue before the court "is whether the minor was 'left' within the meaning of the statute. The fact that a parent has not communicated with a child for a period of [one year] or that the parent intended to abandon the child does not become material under section 7822 unless the parent 'left' the child." (In re Jacklyn F., supra, 114 Cal.App.4th at p. 754.)
Substantial evidence establishes that Lisa "left" Chloe within the meaning of section 7822─that is, Chloe was not taken from her care and custody under coercion or against her wishes, and she voluntarily surrendered her parental rights and obligations by her inaction after the Tennessee court issued its custody order in 2002. During their reacquaintance visit in June 2002, Lisa apparently was frustrated by the behavior of the then three-year-old Chloe who had not seen Lisa for more than one year, and suggested that visits be postponed until Chloe was older. Lisa agreed to wait until Chloe was five years old, thereby relinquishing her one-week visit that summer and her three-week visit during the summer of 2003. Thus, Lisa voluntarily left Chloe in the care and custody of Corey and Sabrina for more than one year.
We note that Lisa did not voluntarily leave Chloe with the paternal aunt and paternal grandfather in 2001 for the one year in which she did not see her daughter. Lisa allowed the paternal aunt to bring Chloe to Tennessee for a one-week visit, which was stretched out to two weeks with Lisa's consent. At some point, relatively soon thereafter, the paternal grandfather filed a petition for temporary guardianship of Chloe in the Tennessee court, which granted the petition on May 4, 2001. Once the guardianship was granted, Lisa was no longer legally entitled to custody without further court order; at that time, Chloe's custody became a matter of judicial decree, not abandonment. (In re Jacklyn F., supra, 114 Cal.App.4th at pp. 754, 756-757.)
Nevertheless, Lisa, by her lack of meaningful action with respect to pursuing visitation rights from June 2002 until May 2006, converted the original judicial "taking" into a voluntary "leaving." (In re Amy A., supra, 132 Cal.App.4th at p. 70; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 815-816; In re Jack H. (1980) 106 Cal.App.3d 257, 264.)
The court found that from 2002 until 2005 Lisa made only "token attempts" to communicate with Chloe because Lisa never followed through with her requests for summer visits in Missouri. In this regard, the court expressly found Sabrina to be more credible than Lisa. The juvenile court, sitting as trier of fact and having the opportunity to observe the appearance, demeanor and tone of the various witnesses as they testified, was in a vastly better position than we, who have only the cold written record before us, to make such credibility calls. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195.) Lisa claims that because she testified by telephone, the juvenile court was not in a better position than this reviewing court to assess her credibility. We disagree. The court heard Lisa's testimony and thus was able to consider Lisa's tone, word emphasis and focus in determining her credibility. Our appellate review is restricted to the reporter's transcripts. Accordingly, as an appellate court, we must defer to the trial court's resolution of evidentiary conflicts and its assessment of witness credibility. (In re Marcos S. (1977) 73 Cal.App.3d 768, 781.) It is not our role to reweigh the evidence or redetermine facts. (In re Rubisela E., supra, 85 Cal.App.4th at p. 195.)
Lisa's suggestion that the juvenile court should have followed the social worker's recommendation because the worker interviewed Lisa is not persuasive. The social worker conducted her interview of Lisa by telephone.
"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 . . . ." (§ 7822, subd. (b).) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A., supra, 132 Cal.App.4th at p. 68.)
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." (§ 7822, subd. (b).) To overcome the presumption of an intent to abandon where there has been no support for or communication with the child for one year, a parent must make more than token efforts to support or communicate with the child. (In re B.J.B., supra, 185 Cal.App.3d at p. 1212.) The parent's efforts should also show a genuine desire to maintain the parental relationship. (Ibid.) Substantial evidence supports the court's finding that Lisa did not make more than token attempts to communicate with Chloe. Lisa's attempts to communicate with Chloe by telephone were infrequent and sporadic. Lisa complains that Corey and Sabrina imposed limitations on her ability to visit Chloe, but she waited until 2006 to ask a court to intervene.
In summary, substantial evidence supported the finding of abandonment.
II. Full Faith and Credit
Lisa contends the juvenile court erred by not giving full faith and credit to the Tennessee court's orders. Further, Lisa contends the abandonment issue is barred by principles of res judicata. These contentions are without merit.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (§ 3400 et seq.) regulates child custody proceedings when another state or a foreign country is involved. An action to terminate parental rights is a "child custody proceeding" governed by the UCCJEA. (§ 3402, subd. (d).)
A child's "home state" is "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child custody proceeding." (§ 3402, subd. (g).) A California court may modify a child custody determination made by a court of another state if California is the home state of the child and the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 3422. (§§ 3421, 3423, subd. (a).) A court of another state no longer "has exclusive, continuing jurisdiction" once it "determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with [that] state and that substantial evidence is no longer available in [that] state concerning the child's care, protection, training, and personal relationships." (§ 3422, subd. (a)(1).)
Under the UCCJEA, once a court, which is determining custody of a child learns of a conflicting proceeding in another state, it must communicate with the sister state forum. (§ 3426, subd. (b).) In Kumar v. Superior Court (1982) 32 Cal.3d 689, 696, our Supreme Court held that all petitions for modification of child custody decrees must be addressed to the state of original rendition unless that state has lost jurisdiction under the Act's standards. " 'Only when the child and all parties have moved away is deference to another state's continuing jurisdiction no longer required.' " (Ibid., italics omitted.)
The Kumar court was referring to the Uniform Child Custody Jurisdiction Act, which was then in effect. (Former Civ. Code, § 5150 et seq.)
Here, the juvenile court followed the dictates of the UCCJEA. It contacted the Tennessee court and discussed jurisdiction. (§ 3426, subd. (b).) The Tennessee court acknowledged that it had doubts that it had jurisdiction when it heard the matter in 2006, and that California was better suited to have jurisdiction. This was a well-reasoned conclusion considering that none of the parties lived in Tennessee, and Corey and Chloe lived in California. (Kumar v. Superior Court, supra, 32 Cal.3d at p. 696.)
The doctrine of res judicata does not apply here. Res judicata is applicable when (1) the issues decided in the prior adjudication are identical with those presented in the later action, (2) a final judgment on the merits was issued in the prior action, and (3) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication. (Levy v. Cohen (1977) 19 Cal.3d 165, 171; Hecker v. Nathanson (2002) 99 Cal.App.4th 1158, 1162.) The Tennessee contempt action dealt only with Corey's alleged violation of the court's earlier visitation order. The issue of Lisa's abandonment of Chloe was not litigated. The Tennessee court did not make a contempt finding, but rather ordered Lisa to have a visit with Chloe. There was no identity of issues between the Tennessee action and the stepparent adoption proceeding, and no basis for applying collateral estoppel principles.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.