Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. S-1501-AT-2746 Judith K. Dulcich, Judge.
Gorman Law Office, Seth F. Gorman, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural and Factual Summaries
This is a timely appeal from an order terminating parental rights pursuant to Family Code section 7822. Appellant, M.L. (father), fathered a daughter, J.L., who was born in January 2000. At the time of J.L.’s birth, M.L. and the child’s mother, O.C. (mother), were married and living together. The couple separated in 2003 and divorced shortly afterward. The divorce and subsequent family law custody battles were tumultuous and combative. The initial dissolution order, filed in July 2004, granted joint legal custody of J.L. to both parents, with primary custody being awarded to mother. The order granted father reasonable visitation to be mutually agreed upon by the parties.
All further references are to the Family Code unless otherwise noted.
In August 2005, mother sought modification of the visitation orders. The supporting documents indicate that the couple was having difficulty reaching agreement as to the visitation schedule and that mother objected to conduct by father’s soon-to-be spouse during the visits. The court specified that visitation should be every other weekend and once during mid-week. The court also assigned an exchange place, the Bakersfield Police station, and ordered that J.L.’s hair not be cut without mother’s permission. Later modification orders were sought and obtained as the parents fought about holiday visits and interaction between the stepmother and child and between the stepbrother and child. There were allegations of physical abuse by the stepmother and sexual abuse by the stepbrother. Child protective services concluded these were unfounded. The family law case file establishes that visitation was hotly contested by mother and father and that father fought all attempts by mother to restrict his visitation.
In February 2007, father was arrested on a number of serious charges including rape, kidnapping, and use of a weapon. Pursuant to a negotiated plea agreement, father entered a plea of no contest to second degree burglary in August 2007. The other charges were dismissed. According to father, at the time of the offense, he was working as an armed security guard at an apartment complex. One night, he and his partner contacted a woman who had driven into the complex. According to father, the partner and the woman stayed at the car while father left and resumed his duties patrolling the complex. Several times, father returned and saw that his partner and the woman were still at the car. He saw them walk behind a building. At one point, he walked into the laundry room and saw his partner and the woman engaging in sexual intercourse. He did not do anything or report the incident because he did not believe it was his business and he believed the encounter was consensual. Later, his partner gave him an iPod, which turned out to belong to the woman. The woman apparently reported the incident as a kidnap and rape. Father’s partner now is serving a prison term in connection with the offense, and father took the plea agreement because he was facing a life sentence, “[f]or nothing that I did.” Father was sentenced to five years and his expected release date is 2011.
Immediately following father’s arrest, mother filed an ex parte application to suspend father’s visitation with J.L. The order was granted on February 27, 2007. The matter was continued a number of times while father awaited trial. Ultimately, after a hearing at which father did not appear and claims he had no notice of (he was incarcerated at the time), the trial court modified its earlier visitation order, suspending all visitation between father and J.L. The court also ordered that there be no contact between them until further order of the court. This is the last visitation order in the file.
Also after father’s incarceration, the trial court suspended his child support obligation. At the time, father was substantially behind in his support, making only “[h]it and miss” payments prior to incarceration.
Father has had no visits or telephone contact with J.L. since his incarceration. He has provided no support for her, nor sent her any gifts. He claims he sent eight to 12 letters to J.L., but mother testified she received only two-one mailed to her work address and one delivered by M.L.’s father, the grandfather. Father does not have mother’s current address or telephone number. According to the grandfather, he personally delivered both letters within a couple months of each other, in the summertime of “this year, ” which would have been after the petition was filed. Father has taken no steps to seek modification of the current visitation order, other than to do some research. He contacted prison legal services to try and get a contact number for mother but “nothing really came [his] way.”
Mother has remarried and her husband wishes to adopt J.L. According to mother, J.L. and her husband have a good relationship.
On February 18, 2009, mother filed a petition to terminate father’s parental rights on two separate grounds, section 7822 (abandonment) and section 7825, subdivision (a) (unfitness due to felony conviction). The family court services investigator interviewed mother, father, and J.L. J.L. told the investigator that she was sad her father was in prison but that “‘he wasn’t around much when I was little.’” She also said she did not want to see her stepmother again. She said she would want to see her father again “‘[as] long as it was just a day’” and her stepmother was not present. She did not want to live with her father or spend the night in his home. She did say she missed her paternal grandparents whom she had not seen since her father’s incarceration. J.L.’s attorney recommended termination, saying the child had been through a lot and that J.L. needed a “simpler life.”
After the hearing, at which both mother and father testified, the trial court found mother to be credible when she testified that visitation between father and J.L. was irregular before incarceration and that father had sent only two letters to her asking about J.L. during incarceration. The court found that father’s offense, second degree robbery, was not of a nature that would make him unfit to parent pursuant to section 7825 and denied the petition on that ground. The court did find, however, by clear and convincing evidence, that the failure to support J.L. and the failure to communicate with her was “clear evidence of [the father’s] intent to abandon [J.L.]” and granted the petition to terminate rights pursuant to section 7822.
Discussion
I. Applicable law
Section 7822 allows the court to declare a child free from parental custody and control 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.” (§ 7822, subd. (a)(3).) Subdivision (b) of the statute states that “[t]he … failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.” (§ 7822, subd. (b).)
“Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child. [Citation.] Typically, such statutes are invoked for the purpose of terminating the rights of one or more biological parent, so the child may be adopted into a stable home environment. [Citations.]” (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162.) The purpose of the statutory scheme 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.” (§ 7800.) The best interests of the child are paramount in interpreting and implementing the statutory scheme. (In re Daniel M. (1993) 16 Cal.App.4th 878, 883-884.) The trial 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.” (§ 7890.)
The relationship of a natural parent to his or her child is a vital human relationship, with far-reaching implications for the child’s growth and development. As a result, proof of abandonment must be established by clear and convincing evidence. (Neumann v. Melgar, supra, 121 Cal.App.4th at p. 163 .) Although a trial court must make its findings under section 7822 based on clear and convincing evidence, the appellate court applies a substantial evidence standard of review to a trial court’s findings. Our review is limited to whether substantial evidence exists to support the conclusions reached by the trial court in applying the appropriate standard. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010-1011; In re Amy A. (2005) 132 Cal.App.4th 63, 67.) We resolve all conflicts in the evidence in favor of the respondent, and all legitimate and reasonable inferences must be indulged in to uphold the judgment. (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
II. Best interests of the child
Father contends that the trial court did not make an express finding that termination of parental rights is in J.L.’s best interests and that there is insufficient evidence to support an implied finding. We disagree.
First, there is no requirement that the trial court make an express finding. (See In re B.J.B. (1986) 185 Cal.App.3d 1201, 1207 [no requirement that court expressly find detriment to child before it can order termination of parental rights under section 7822].) Even though, in this case, the trial court did not make an express finding that it would be in J.L.’s best interests to terminate parental rights, it did consider the issue. Its order reviewed the position of J.L.’s attorney on the question of whether it was in J.L’s best interests to terminate parental rights-input the court had expressly asked for at the hearing. When counsel seemed to stray from the issue, the court again redirected counsel to the question of J.L.’s best interests. The trial court clearly understood it was required to consider J.L.’s best interests when making its decision, unlike the cases cited by father where it was not possible to ascertain from the record whether the trial court had considered the issue.
We conclude that the evidence is sufficient to support the trial court’s implicit finding that it is in J.L.’s best interests to terminate parental rights. The family law file, of which the court took judicial notice, provided evidence that the relationship between father and mother was difficult prior to father’s incarceration and that J.L. suffered as a result of father’s new relationships. Although the trial court did not accept as true the various allegations found in the family law case, the family law court consistently limited the manner in which visitation was afforded father even if it did not limit the amount. Without a doubt, there were significant problems with father’s exercise of visitation and the relationship between J.L. and father’s new family. J.L. stated she did not want further involvement with father’s new family and the reasons why. The family court services investigator reported J.L.’s wishes and concerns about termination. J.L.’s willingness to continue a relationship with her father was extremely conditional. In contrast, mother testified that J.L. had a good relationship with her stepfather and that he wished to adopt J.L.
The court found credible mother’s characterization of father’s visitation with J.L. as being irregular prior to his incarceration. We are bound by the credibility findings of the trial court. (In re Marriage of Stitt (1983) 147 Cal.App.3d 579, 586.) J.L. said that her father was not around much when she was little, which corroborated the mother’s testimony. Obviously, in light of father’s incarceration, he cannot be around J.L. now. The court need only consider J.L.’s wishes and determine whether it is in her best interests to have her father’s rights terminated. Given the evidence, we conclude there is sufficient support for the trial court’s implicit finding that it is in J.L.’s best interests to terminate father’s parental rights, freeing J.L. to be adopted by her stepfather who has served in the parental role since mother’s remarriage in 2004.
III. Intent to abandon
Father also contends there is insufficient evidence to sustain a finding that he voluntarily abandoned J.L., arguing that he did not abandon J.L., but was judicially precluded from having any contact given the last visitation order. Again, we disagree.
Case law clarifies that, pursuant to section 7822, abandonment must be voluntary. (In re Amy A., supra, 132 Cal.App.4th at p. 69; In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) Abandonment does not occur when the child is taken from parental custody against the parent’s wishes. (In re Amy A., supra, at p. 69; In re Jacklyn F., supra, at p. 754; see also In re George G. (1977) 68 Cal.App.3d 146, 160; In re Cattalini (1946) 72 Cal.App.2d 662, 665.) Initially, we agree that father did not abandon his child when he left J.L. in mother’s care as a result of the dissolution proceedings, or when the custody order was modified to prohibit contact in February 2007. His access to J.L. was restricted by the court’s orders.
It is also well established, however, that abandonment under the statute is not permanent abandonment, but abandonment for the specified period of time-one year. 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 Daniel M., supra, 16 Cal.App.4th at p. 885 [construing predecessor statute].) After father’s incarceration, which occurred as the result of his voluntary unlawful acts, he failed to take any action in the face of the custody order and made no attempt to obtain visitation or reestablish contact with J.L. during his incarceration. (See In re Amy A., supra, 132 Cal.App.4th at p. 70; In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816.) Inaction in the face of the custody order provides substantial evidence of voluntarily abandonment within the meaning of section 7822. (In re Amy A., supra, at p. 70; In re Jacqueline H., supra, at p. 816.)
Further, although father raises the no-contact order as a shield to explain the absence of any contact during incarceration, he, at the same time, presented evidence that he ignored the order and sent letters to J.L. Although he claims he sent eight to 10 letters while incarcerated, the trial court found this evidence to be not credible. No letters to J.L. were ever produced. There was credible evidence of two letters sent to mother, one in 2007 and one in 2008 according to the mother, or both in the summer of 2009, according to the grandfather. These letters were addressed to mother, not J.L., and simply asked how J.L. was doing. The statute requires communication with the child. (§ 7822, subd. (b).) The letters did not include a request for visitation or ask for telephone contact. They are not evidence that father was attempting to preserve the parent/child relationship so crucial to J.L. They are but a token attempt at maintaining contact. (See Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1009-1010 [token efforts to communicate are not sufficient to rebut statutory presumption].) The trial court also did not find credible father’s claims that he had asked his family to act on his behalf to support J.L. Father has provided no substantial support for J.L. since the separation.
Unquestionably, it is difficult while incarcerated to maintain the parent/child relationship. Parenting is not an easy task and requires perseverance even in the most ideal situations. Other incarcerated parents, however, manage to stay involved in their children’s lives. Children cannot wait for parents to discover how to meet their needs. Father’s efforts were too little and came too late.
We acknowledge that many of the cases cited by father involve facts more egregious than those here and include longer periods of parental abdication. The question, however, is whether there is sufficient evidence to support the trial court’s findings. Abandonment and intent are questions of fact for the trial judge. There is sufficient evidence in the record to support the trial court’s findings and we have no power to substitute our judgment for that of the trial court. (Adoption of Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.)
DISPOSITION
The judgment is affirmed.
WE CONCUR Cornell, J.Hill, J.