Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. S-1501-AT-2879, John L. Fielder, Judge.
Mary R. Williams, under appointment by the Court of Appeal, for Objector and Appellant.
F.L. Thompson and Roman Thomason for Petitioner and Respondent.
OPINION
Gomes, Acting P.J.
Danny B. (father) appeals from an order declaring his daughter, Samantha B., free from his custody and control pursuant to the provisions of Family Code sections 7820 and 7822. The family court granted the petition of Samantha’s mother, Lori M. (mother), to terminate father’s parental rights, finding that father had not supported Samantha for a period of one year. Father argues the lower court erred because (1) it did not have jurisdiction to consider mother’s petition in the absence of a pending adoption; (2) substantial evidence does not support a finding that father abandoned Samantha; (3) substantial evidence does not support a finding that it would be in Samantha’s best interest to terminate father’s parental rights; and (4) it failed to inquire of father whether he had Native American ancestry as required by the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) and applicable rules of court. We agree with father’s contention that the evidence was insufficient to support a finding that he intended to abandon his daughter and therefore reverse.
All further statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
The Petition
This case began on March 3, 2010, when mother filed a pro se “Petition to Declare Minor Free From Parental Custody and Control” in Kern County Superior Court. (See § 7822, subd. (a).) Mother asserted in the petition that she and Samantha, born in February 2005, lived in Bakersfield and father’s whereabouts were unknown. Mother further asserted that father left Samantha in her care and custody for a period of two and a half years, beginning August 24, 2007 and ending February 25, 2010, without any provision for Samantha’s support or communication with the intent to abandon Samantha.
Mother filed a “Parental Notification of Indian Status, ” Judicial Council form ICWA-020, on which mother checked the box next to which is stated “I have no Indian ancestry as far as I know[.]” Mother also filed a declaration under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which listed Samantha’s residences for the last five years. Mother stated that from 2005 to the present Samantha lived with her at five different addresses in Bakersfield, and she had no information about, and had not participated in, another court case, or custody or visitation proceeding, concerning Samantha. A hearing on the petition was set for April 23, 2010; father was served with the petition via substitute service on his mother at an address in Bakersfield.
The Investigator’s Report
In anticipation of the hearing, an investigating officer with family court services completed a report, which was filed on April 20, 2010. In that report, the investigator stated that five-year-old Samantha lived with her mother, her maternal grandmother and extended family, and attended preschool. The investigator believed that at Samantha’s age, her understanding of parenthood was very limited and the concept of terminating parental rights even more limited.
The investigator interviewed mother, who told him she and father moved in together after she became pregnant in 2004. When mother gave birth to Samantha in February 2005, father was present at the hospital and his name is on the birth certificate. They married in July 2005. Mother claimed that father was increasingly physically, mentally and emotionally abusive towards her and he was arrested on two separate incidents of domestic violence. Mother said she separated from father in August 2006. She reported very sporadic contact between herself and father after that, but claimed he made no effort to see Samantha and did not contribute any support in money, child care supplies or gifts. According to mother, father told her he was leaving the state and the last time he saw Samantha was August 24, 2007, right before he moved to Nebraska. Mother said the visit was brief and he showed no interest in visiting with Samantha. Mother married another man, N.M., in May 2008, but he passed away unexpectedly in January 2009.
The investigator reported that father is Samantha’s alleged father. Mother was not aware that father had any Native American ancestry. A certified letter was sent to father’s last known address on March 25, 2010, but it was returned as undelivered and unable to forward. Mother provided an address for father’s mother and a certified letter was sent there on April 6, 2010. By the time the report was written, father had not contacted the investigator.
With respect to Samantha’s availability to father over the past three years, mother told the investigator she e-mailed father her MySpace page information after he moved to Nebraska, to which father sent occasional messages. Mother also said she e-mailed father her cell phone number over a year ago and had maintained the number, but he never called her. Mother knew father had four other children from previous relationships and was aware one of the mothers had filed a termination of parental rights for her child, which father did not contest. Mother claimed she was pursuing the petition because if anything happened to her, she did not want Samantha raised by an abusive man with a criminal background, and instead wanted her mother to raise Samantha.
The investigator noted that mother’s petition sought to have Samantha declared free from father’s parental custody and control, and alleged that father had left Samantha in her custody and control with no communication and no provision for support since August 2007, a period of more than one year. The investigator thought the petition’s allegations appeared to be true and satisfied the legal standard of section 7822, subdivisions (a) and (b), as mother claimed father had not seen Samantha since August 2007, and he had not paid child support or given gifts for over three years. The investigator concluded that father’s lack of follow-through on attempting to obtain court-ordered visitation appeared to indicate both his lack of intent to maintain a relationship with Samantha and his intent to abandon her, and in the investigator’s opinion, it appeared in Samantha’s best interest for father’s rights to be terminated. Accordingly, the investigator recommended that the petition be granted.
The April 23, 2010 Hearing
Both father and mother appeared at the April 23, 2010 hearing on the petition. Father stated he wished to contest the petition. The court referred father to family court services to be interviewed and appointed an attorney for him, as well as for Samantha. The court continued the hearing on the petition to May 7, 2010.
The Investigator’s Supplemental Report
The investigating officer interviewed father and filed a supplemental report on April 28, 2010. Father is a resident of Nebraska, where he moved in September 2007. Father claimed that at that time, mother told him she and Samantha would follow him to Nebraska, and resume her relationship with him. Father produced two e-mails from mother, dated October 7 and October 9, 2007, which the investigator reported “appear to show a friendly relationship between them.” Father said that shortly after this, mother changed her telephone number and e-mail address so he had no way of contacting her.
Father claimed that contact resumed in January 2009, when mother gave him her e-mail address, MySpace page information and phone number. Father said he tried to speak with Samantha by telephone, but mother would not allow it. Father produced e-mails from mother dated January 20 and 23, 2009, which the investigator reported “appear to show communication between father and mother was reestablished, but not with Samantha.” Father also produced pictures of Samantha that mother had sent to him on a phone, which were dated January 27, 2009, February 1, 2009, July 12, 2009, August 5, 2009, September 21, 2009, October 11, 2009, November 25, 2009, November 26, 2009, November 28, 2009, January 9, 2010, and January 31, 2010. Father said he called mother several times to speak with Samantha and arrange visits, but mother would not allow it. Father did not pursue coming to court to establish visitation due to the distance, cost, and not knowing how to do so.
The investigating officer contacted mother regarding father’s claims. Mother admitted they had discussed moving to Nebraska in 2007 and she had considered moving there, but claimed she changed her mind after she became uncomfortable with father’s increasingly controlling behavior during telephone conversations. Mother explained that she had separated from him previously due to his history of domestic violence, and she came to believe that father had not changed. Accordingly, she broke off communication with him. Mother confirmed re-establishing an e-mail address, telephone number and MySpace page in January 2009, so father could contact her, and acknowledged sending him pictures of Samantha. Mother recalled only one other telephone conversation with father, in May 2009. She claimed he did not ask to speak with Samantha, but instead wanted to discuss their relationship. Mother denied that father contacted her for visitation with Samantha throughout 2009.
The investigating officer continued to recommend that mother’s petition be granted, as father acknowledged the last time he saw Samantha was in August 2007, yet since moving to Nebraska he never paid child support, sent gifts or cards, or attempted to come to court to seek visitation. The investigator opined that since father came to court to contest the petition, he could have come to establish visitation, and believed father had chosen not to establish and maintain a parental relationship with Samantha.
Father’s Written Opposition and Declaration
Father’s attorney filed written opposition to the petition, as well as father’s declaration. In his declaration, father stated he had been an attentive father to Samantha for the first two years of her life. Father explained that he and mother had been attempting to work out some marital problems when she filed for divorce in May 2007. While he was served with the divorce papers, they did not complete the divorce at that time because they were attempting to work on their marriage. He and mother discussed relocating to Nebraska so they could begin a new life, work on their marriage, and provide a better life for Samantha. In September 2007, he moved to Nebraska with the intention of having mother and Samantha move there shortly thereafter. Mother and Samantha saw him off to Nebraska at the bus station. After that, most of their communication was through MySpace, although there also was contact by e-mail and telephone.
During the first few months he was in Nebraska, father continued to have contact with mother by e-mail, MySpace, and exchanging photos. Mother acted as if their relationship would continue and father believed she and Samantha would be moving to Nebraska in the near future. Father said he purchased a jacket for Samantha, which he sent to mother. Suddenly and without warning, mother told him she was no longer moving to Nebraska and then cut off all communication with him. She changed her phone number and deleted her MySpace page, which prevented him from electronically contacting mother about Samantha. Father felt at a loss due to the sudden disconnection, since he did not know why mother had cut off contact, and had no way to contact them.
Father purchased a shirt and toys for Samantha’s third birthday, but he could not send them because he did not know her whereabouts. While father said he wanted to locate mother and Samantha, he did not have the means to do so because he just had started a job making $9 per hour. In April 2008, mother obtained a default divorce judgment against father, but did not send him any documentation regarding the judgment; instead, he found out about it by checking the Kern County Superior Court website.
Father stated that mother remarried and he believed she moved out of Kern County and California, even though that was not stated on the UCCJEA declaration. Father claimed he would not have been able to locate mother because there was no indication where she was living. On January 20, 2009, after a year of non-communication, mother contacted him through her mother’s MySpace page to inform him that her new husband had passed away, she was sorry for shutting him out for so long, and there was “no good excuse for it.” Less than an hour later, mother contacted father on her MySpace page. Father responded through the same account and gave mother his telephone number, asking her to contact him and allow him to speak with Samantha. Mother responded by saying Samantha doesn’t remember him and she did not want to confuse her.
The January 20, 2009 e-mail from mother to father states: “Hi long time no talk to. Please don[’]t respond to this e mail. My e mail address is.... I don[’]t have a myspace account anymore but I am thinking about creating another one. Samantha is doing good. I know you have been wondering about her. Right now we are going through some hard times. My husband passed away on the 13[th] of this month and [I’]m not handling it too well. She is excited about her baby brother. I am 7 months pregnant and am due in April. I am sorry for shutting you out this long. There is no good excuse for it. We were all happy and I swear to you she was extremely well taken care of. She loved him. I[’]m not trying to tell you this to make you feel bad even though I have no idea what you must have been going through. I can say that I am sorry and that I know that doesn[’]t change much but I am. Just please don[’]t reply to this through myspace. [T]his is my mom[’]s account and she will get pissed.”
These series of e-mails show that mother stated she created a MySpace page on January 20, 2009, father sent a message on January 23, 2009 with his telephone number and asking her to call him so he can talk to Samantha if mother did not want to talk to him herself, and the following response from mother: “I will call you when I get a chance. Samantha doesn[’]t remember you. If you tell her u are her daddy she is going to think you are N[]. I[’]m sorry I know this all seems so unfair. Right now she is trying to comprehend that “daddy” is dead and is not com[]ing back. I don[’]t want to re introduce u to her and confuse her anymore than she already is. Is it ok if I call and talk to u for a while and see if we can come up with a compromise to where you can talk to her but not confuse her? How are things going with you anyways?”
Father said he was trying to do what was best for Samantha and although he wanted to see her, he did not want to confuse her. He wanted to reestablish their relationship and for Samantha to know who her father is. Father claimed he and mother continued to have contact over the telephone from January 2009 until March 2010, mother sent him photos of Samantha through text messages, and he continually asked to speak with Samantha, but mother refused to allow him to do so.
According to father, mother called him in approximately October 2009 and told him she had a proposition for him — if he was willing to sign away his parental rights, she would not ask for child support. Father told mother he would never sign away his parental rights, asked her to please file for child support since she was in California and he was in Nebraska, and if she filed for child support, he would at least be able to have contact with Samantha. Mother, however, did not file for child support at that time. Father said he would have come to California to file the paperwork if he had the means or ability to come to do so.
Father said his mother told him she had been served with mother’s petition in this case, and on March 16, 2010, mother sent him a message through MySpace stating she had filed abandonment papers, that his appearance was optional and she was going to continue with it whether or not he appeared. Mother also said she would let Samantha know who her father is when it is appropriate and would give Samantha the opportunity to see him if Samantha wanted.
Father claimed he never intended to abandon Samantha and did not believe mother had proven he intended to abandon her. Instead, father believed mother had shown an intent on her part to alienate him from Samantha.
In his written opposition, father asserted that mother had lied and made misrepresentations in her petition, including (1) that father’s whereabouts were unknown, as mother had been in contact with father for at least one year before she filed the petition, (2) that father had not provided for or communicated with Samantha and intended to abandon her, even though father had made several requests to contact Samantha, which mother had denied, and (3) statements on mother’s UCCJEA declaration that Samantha had continually lived only with mother in Kern County, when mother and father had lived together during the early stages of their marriage and mother had apparently been living out of state when she became pregnant with her second child. Father further asserted that while he had made every effort to contact Samantha, he had been unable to make any real contact because mother had thwarted his efforts. Father requested the court deny the petition, as he had shown more than mere token efforts to communicate with Samantha.
The Hearing on the Petition
The hearing on the petition was continued to, and ultimately held on, June 11, 2010. Before the hearing, mother filed an amended UCCJEA declaration, in which she stated that (1) she and father lived together with Samantha in Bakersfield from February 2005 to August 2006; (2) from August 2006 to May 2008, mother lived with Samantha in Bakersfield at three different addresses; (3) from May 2008 to November 2008, she lived with Samantha in Oklahoma; and (4) from November 2008 to the present, she lived with Samantha in Bakersfield at two different addresses.
Mother testified she lived with father for three years. After they broke up on August 6, 2006, they lived in separate households. Mother did not remember when she filed for divorce, but knew it became final on April 10, 2008. Mother claimed she sent the divorce paperwork to father’s mother’s house and she had discussed with father the fact that the divorce was final.
Mother lived in Kern County from August 6, 2006 to April 10, 2008. Before father moved to Nebraska in August or September 2007, he saw Samantha every day. Mother had considered reconciling with father in August or September 2007, but in October she decided against it and they stopped communicating regularly. Mother could not remember how often father called to speak specifically with Samantha after he moved to Nebraska, but claimed “[i]t wasn’t very often.” He did not send Samantha birthday cards or letters and never gave mother his address in Nebraska.
Mother had a MySpace page through which father was able to communicate with her, but she claimed she closed the account in December 2008. She created another MySpace page and began contacting father on that page in January 2009, which left only a one month period during which father could not contact her. Mother explained she was referring to this one-month period when she stated in her January 2009 e-mail to father that she was sorry for shutting him out for so long.
Mother married another man on May 14, 2008 and moved to Oklahoma on May 20, 2008. Mother claimed that before she moved, father did not offer to come and visit Samantha, and never told her he wanted to file a motion to get visitation rights. Although father knew she was moving to Oklahoma because she told him so during a telephone conversation, he did not have her address there. Mother claimed father did not attempt to communicate with her or Samantha through her MySpace page from May through December 2008, and while he had her telephone number from May to September 2008, when she changed to a new number, he did not call her. In 2008 and 2009, mother sent father approximately ten pictures of Samantha each year. At first mother testified she did not remember if she sent father pictures in 2007, but later testified that she did so.
On cross-examination, mother admitted she and father were trying to reconcile in October 2007 and she was planning to go to Nebraska to see him. Mother also admitted she had been in constant contact with father since he moved to Nebraska in 2007. Mother claimed she did not want to keep Samantha away from father, but she did not want him to tell Samantha he is her father because it would confuse her since “the one that she knew as daddy had just passed away.” Mother claimed January 2009 was the first time father had attempted to contact Samantha.
Mother testified that she spoke with father over the telephone in October 2009 and asked him to sign over his parental rights. They also discussed child support, but father did not ask to speak with Samantha. Mother admitted she knew father had moved in with his sister when he first moved to Nebraska and that father had sent Samantha a package soon after he moved to Nebraska that contained a jacket that may have had a return address on it. Mother, however, said she did not pay any attention to it.
Father testified that in August 2006, he and mother moved into separate houses, and in September 2007, he moved to Nebraska. Before leaving for Nebraska and during the first few months he was there, he and mother discussed reconciliation. Four to six months after he moved, in early to mid-2008, mother cut off communication by deleting her MySpace page and changing her phone number. Sometime in 2008, father discovered the divorce from mother was finalized by looking the information up online. He did not file a motion for visitation at that time because he did not have the means to come back to California from Nebraska, and he was trying to get situated in Nebraska. Father testified it was a “high priority” to see his daughter, but he had never filed anything with the court requesting visitation.
When asked if he ever paid child support, father responded: “There w[ere] no orders for that. Me and her discussed that on the phone, and I told her I wanted to be able to see my daughter and I’d be — gladly to pay child support.” Father admitted he never paid child support, although he did buy some things for Samantha and send them to her. He tried to send her some other things, but had no way of sending them to Samantha after mother changed her address. Father did not send Samantha a Christmas card in December 2007 because at that time “we were talking on the phone” and she was not able to read since she was only two.
Father explained the plan was for him to get a job in Nebraska and get situated so mother and Samantha could move out there with him. Father claimed he communicated with mother mostly by telephone between September 2007 and when she cut off contact in early 2008. When mother resumed communicating with him, the first thing he requested was to talk to Samantha, as it had been a long time since they had talked and he wanted to speak with her. After January 2009, he and mother communicated mostly by telephone calls and mother sent him texts with pictures of Samantha. Nearly every time he received a picture, which he estimated was between 15 and 20 times, he would call mother and “try to reconcile something” and talk to Samantha, but mother refused to let him talk to her because she was concerned it would confuse Samantha, as Samantha did not know who he was.
Father claimed he did not contact mother more often to request contact with Samantha because every time he called mother, she upset him when she refused to let him talk to Samantha and told him Samantha didn’t know who he was. According to father, every conversation became a “big argument” over the phone and didn’t progress to anything, as mother would ask him to either sign over his parental rights, which he refused to do, or pay child support, which he told her he would gladly pay.
Samantha’s maternal grandmother testified that she believed mother closed her MySpace page in December 2009. Samantha’s attorney informed the court that he thought it would be in Samantha’s best interest to terminate father’s parental rights “partially given the fact that he does live in Nebraska, he has never been back to California since then, ” and if he continued to live in Nebraska, it would be hard for the two to build a relationship.
The Court’s Ruling
The court ruled on the record. The court explained that at the outset of the hearing, its tentative view of the case was to strongly disagree with the investigator’s recommendation to grant the petition. The court further explained there are two prongs to Section 7822, which allows a parent to file a petition when either (1) the minor has no contact with the other parent for a period of one year or more, or (2) a parent has not provided any support for the minor when the minor lives with the other parent for a year or more.
With respect to contact, the court explained it did not believe almost anything mother said and found her to be “extremely disingenuous … with regards to contact, ” as she had misrepresented herself to family court services, as well as in court, on the issue of visitation. The court had “no doubt” that mother made serious efforts to block father’s interaction with Samantha and believed she had decided to start a new life with her new husband, who would be Samantha’s “daddy, ” and she would not allow father to get in the way of that. The court also stated there was “no question in my mind that [father] made efforts to send gifts, that he certainly made effort to have contact with Samantha, and that [mother] did block those efforts.” The court found father clearly had made quite a few communications with mother regarding contact and therefore concluded it could not grant the petition on the ground of failure to communicate and find “that he had abandoned the child because it is simply not the case.”
With respect to support, however, the court found that there was no evidence father made any effort to support Samantha, and instead the evidence showed “that he is going to try to use support to in effect get back in the child’s life, ” by stating “[n]o contact, no support. If I get contact, then there would be support.” The court explained this was “just a strong a prong as it would be if he had never... made any efforts to contact Samantha and not done so.”
The court further explained: “Unfortunately for [father] that is evidence of an intent to abandon. That is one of the two things that when a Court grants an adoption, as you know, one of the two things that the Court has to advise a person when we are going to make them a parent of a child the right of inheritance and a duty of support. And he has failed in his duty of support. And I heard nothing to indicate there was anything to prevent his ability to pay support. [¶] … [¶] So all I have before me is evidence that without question he did not pay support, and when he was queried, when he was queried about visitation, his position was if he didn’t get visits, there was no support. Which is contrary to his responsibilities. [¶] Based upon all of that, the Court is going to reverse itself or my initial opinion and find that 7822 has been met in that the citee has not paid any support and there’s no indication he had an inability to do so.” On that basis, the court granted mother’s petition to declare Samantha free of father’s parental custody and control.
DISCUSSION
Mother’s Standing
Mother sought to terminate father’s parental rights pursuant to section 7822, which provides, in pertinent part: “(a) A proceeding under this part may be brought if any of the following occur: [¶] … [¶] (3) One 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. [¶] (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...”.
Pursuant to section 7841, a proceeding under section 7822 may be brought by an “interested person.” Section 7841 provides: “(a) An interested person may file a petition under this part [Family Code, division 12, part 4 (freedom from parental custody and control)] for an order or judgment declaring a child free from the custody and control of either or both parents. [¶] (b) For purposes of this section, an ‘interested person’ is one who has a direct interest in the action, and includes, but is not limited to, a person who has filed, or who intends to file within a period of 6 months, an adoption petition under Section 8714, 8802, or 9000, or a licensed adoption agency to whom the child has been relinquished by the other parent.”
Father claims mother did not have standing to bring the petition because she is not an interested person within the meaning of section 7841 since there is nothing in the record to indicate she is seeking to terminate his parental rights in order to facilitate an adoption of Samantha. Relying heavily on the language of section 7800, which states that “[t]he 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, ” father claims that to be an “interested person” within the meaning of section 7841 for purposes of freeing a child from a parent’s custody and control, “one must have a direct and real interest in having the child freed for adoption by someone other than the parent whose rights the petitioner is seeking to terminate.” He also contends a 2007 amendment to section 7841 and the legislative history of that amendment reinforce his claim that the term “interested person” is limited to parties with a direct and real interest in seeing the child freed for adoption.
Father’s argument was recently rejected by Division Five of the First District Court of Appeal in T.P. v. T.W. (2011) 191 Cal.App.4th 1428 (T.P.), petition for review pending, petition filed March 1, 2011. There, the Court of Appeal reversed the trial court’s ruling that the mother did not have standing to commence a proceeding to terminate the father’s parental rights under section 7802 where no adoption was pending or contemplated. (T.P., supra, 191 Cal.App.4th at p. 1430.) Construing the plain language of section 7841, subdivision (b) defining an “interested person” as having “a direct interest in the action, ” the Court of Appeal concluded the mother, as the biological parent holding sole legal and physical custody of her child, was a person with a direct interest in an action to free her child from the custody and control of the other parent, and rejected father’s attempts to limit the statute to those who have an interest in seeing the child freed for adoption. (T.P., supra, 191 Cal.App.4th at pp. 1434-1436.)
In reaching its decision, the court concluded that case law supported its view that the mother had standing, including In re Eugene W. (1972) 29 Cal.App.3d 623, which held that a social worker was a proper person to being a petition to free four minor children from their mother’s custody and control, and In re Marcel N. (1991) 235 Cal.App.3d 1007 (Marcel N.), which held “that proceedings to free a child from parental custody and control ‘are not limited to cases where adoption is anticipated.’” (T.P., supra, 191 Cal.App.4th at pp. 1436-1439.) The court further concluded that the Legislature’s reenactment and amendment of the statutory provisions at issue without repudiating these court’s holdings or expressly seeking to limit proceedings to terminate a parent’s rights to instances in which adoption is contemplated created a strong presumption that the Legislature adopted the construction of the statute these courts placed upon it. (Id., at p. 1439.)
Finally, the court found unpersuasive the father’s attempts to argue that Marcel N. was wrongly decided and noted father failed to cite a single case to support his view that the term “interested party” must be limited to those seeking to free a minor child from parental custody for purposes of adoption. (T.P., supra, 191 Cal.App.4th at pp. 1439-1440.) Accordingly, the court declined “to adopt such a restrictive reading of the statute, particularly when it is at odds with both our view of the plain statutory language and existing authority.” (Id., at p. 1440.)
We agree with the well-reasoned opinion in T.P. The statute clearly sets forth that an interested person is not limited to a person who has filed or intends to file an adoption petition. Moreover, mother is an “interested person” within the meaning of the statute because she “has a direct interest in the action . . .”. (§ 7841, subds. (a) & (b).) Father does not cite any case law to support his view that the term “interested party” must be limited to those seeking to free a minor child from parental custody for purposes of adoption. Accordingly, mother had standing to file the petition in this matter.
While father does not specifically claim section 7841 is ambiguous, he urges us to take judicial notice of certain documents from the legislative history of the 2007 amendment to section 7841. We may consider a statute’s legislative history only in cases of ambiguity. (Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 597.) As neither party argues the statutory language is ambiguous, and we detect no ambiguity, we decline father’s invitation to look to the legislative history and deny his September 10, 2010 request for judicial notice. Father also has asked us to take judicial notice of certain documents from the legislative history of Assembly Bill 1012 of the 1972-1973 regular session of the California Legislature, which made revisions to former Civil Code section 232, the predecessor statute to section 7822. (See Cal. Law Rev. Comm. com., 29G West’s Ann. Fam. Code (2004 ed.) foll. § 7822, p. 371.) He contends the legislative history is relevant here because it shows the language in section 7822 stating that a proceeding “may be brought where the child has been left... by one parent in the care and custody of the other parent” was intended and designed to facilitate adoption of such child if the parent with whom the child was left wished to relinquish the child for adoption. The statutory language, however, is not ambiguous, and therefore the legislative history is irrelevant. Accordingly, we deny his September 27, 2010 request for judicial notice.
Sufficiency of the Evidence of Abandonment
Father contends the evidence is insufficient to support the trial court’s finding that he abandoned Samantha within the meaning of section 7822. Among other things, he claims substantial evidence does not support findings that he voluntarily left Samantha or that “he had for the requisite one year period willfully ‘failed’ to support Samantha with the intent to abandon her.”
A finding of abandonment under section 7822 in this case requires satisfaction of each of the following elements: (1) the child must have been “left” by one parent in the care and custody of the other; (2) the child must have been left by that parent without any provision for support or without communication for the one-year statutory period; and (3) such acts and omissions must have been done with the intent to abandon the child. (§ 7822; In re Cattalini (1946) 72 Cal.App.2d 662, 665 (Cattalini).)
Abandonment is an actual desertion, accompanied with the intention to sever the parental relationship and throw off all obligations arising from said relationship, or a relinquishment with the intent of not claiming one’s rights or interests. (See Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136 (Michael D.), superseded by statute on another point as noted in In re Mario C. (1990) 209 Cal.App.3d 599, 606; In re Brittany H. (1988) 198 Cal.App.3d 533, 549 (Brittany H.); In re George G. (1977) 68 Cal.App.3d 146, 160 (George G.); Cattalini, supra, 72 Cal.App.2d at p. 669.) But the requisite intent need only be for the statutory period; a showing of an intent permanently to abandon is not required. (In re Daniel M. (1993) 16 Cal.App.4th 878, 883-886.)
“‘The controlling issue for a finding of abandonment is the subjective intention of the parent.’” (Michael D., supra, 209 Cal.App.3d at p. 136; Brittany H., supra, 198 Cal.App.3d at p. 550; In re Jack H. (1980) 106 Cal.App.3d 257, 265 (Jack H.).) “‘[T]he question whether such intent to abandon exists and whether it has existed for the statutory period is a question of fact for the trial court, to be determined upon all the facts and circumstances of the case.’” (Brittany H., supra, 198 Cal.App.3d at p. 550; accord, In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) Thus, “[i]ntent to abandon, as in other areas, may be found on the basis of an objective measurement of conduct, as opposed to stated desire.” (In re Rose G. (1976) 57 Cal.App.3d 406, 423-425 (Rose G.), rejected on another ground in In re Cynthia K. (1977) 75 Cal.App.3d 81, 85.)
While intent to abandon “may be presumed from failure to provide for or communicate with the minor” by virtue of section 7822, subdivision (b) (Jack H., supra, 106 Cal.App.3d at p. 264), any evidence contrary to that presumption causes it to disappear and requires the trial court to determine the issue of intent without regard to the presumption. (Rose G., supra, 57 Cal.App.3d at p. 424.) Failure to contribute support in the absence of demand cannot, standing alone, prove intent to abandon. (George G., supra, 68 Cal.App.3d at p. 159.) On the other hand, a parent’s failure to contribute to his child’s support absent a demand, coupled with a failure to communicate, may support an intent to abandon. (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1013 (Allison C.), citing In re Randi D. (1989) 209 Cal.App.3d 624, 630 (Randi D.).) Nevertheless, evidence of a parent’s inability to pay support rebuts the presumption of abandonment arising from the failure to support. (Allison C., at p. 1013; Cattalini, supra, 72 Cal.App.2d at p. 667.) Still, the statute provides that only token efforts to support or communicate with the child do not disturb the presumption of an intent to abandon. (§ 7822, subd. (b); see In re B.J.B., supra, 185 Cal.App.3d at p. 1212.)
While the standard of proof in the trial court is clear and convincing evidence (§ 7821; In re Angelia P. (1981) 28 Cal.3d 908, 919 (Angelia P.)), on appeal, the duty of the reviewing court is to determine whether there is any substantial evidence to support the trial court’s findings. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.) In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find abandonment based on clear and convincing evidence. (Angelia P., supra, 28 Cal.3d at p. 924.)
Here, the trial court based its decision to free Samantha from father’s custody and control on its finding that father failed to provide for her support for more than one year with the intent to abandon her. The record in this case, however, is wholly inconsistent with a finding of an intent to abandon Samantha. While it is true father never paid child support and there is no evidence he was unable to do so, it is also true that mother never sought or obtained orders for him to pay support. There is no evidence that mother asked father to pay child support before October 2009. Instead, the evidence shows, and the trial court found, that mother was trying to shut father out of Samantha’s life by cutting off communication with him and making her whereabouts unknown beginning in early 2008 so that she could start a new life with her new husband. It was only after her new husband’s death in January 2009 that mother let father know her whereabouts and how to communicate with her. After re-establishing contact, mother did not ask father for support. Instead, the evidence shows she told father she did not want him to resume contact, or have a father-daughter relationship with, Samantha. “[F]ailure to contribute to support in the absence of demand does not prove an intent to abandon.” (George G., supra, 68 Cal.App.3d at p. 159.)
The issue of child support was not raised until October 2009, when mother told father he could sign away his parental rights and if he did so, he would not have to pay child support. In his declaration, father stated that he told mother he would never sign away his parental rights and he asked her to file for child support so he could obtain visitation, which she never did. He testified when he and mother discussed child support, he told her he “wanted to be able to see my daughter and I’d be — gladly to pay child support, ” and when mother asked him to pay child support in subsequent conversations, he said he would gladly do so. Even if these conversations can be interpreted as a demand for child support, they occurred less than six months before the petition was filed in March 2010, and therefore cannot serve as a basis for an abandonment finding, which requires lack of support for one year.
Moreover, the trial court’s findings regarding father’s attempts to communicate with mother and Samantha are inconsistent with a finding that father intended to abandon Samantha by failing to pay child support. The trial court stated it could not find that father failed to communicate with Samantha because, while father did try to send gifts to and contact Samantha, mother thwarted his efforts by cutting off communication. While a parent’s failure to support his child without a demand for payment, coupled with a failure to communicate, may show abandonment (Randi D., supra, 209 Cal.App.3d at p. 630), the trial court here found that father did attempt to communicate, but mother prevented him from doing so.
Father’s attempts to communicate are contrary to a finding that his failure to support Samantha reflected his intent to abandon her, i.e. that he intended to desert her, accompanied with the intention to sever the parental relationship and throw off all obligations arising from said relationship, or that he intended to relinquish Samantha with the intent of not claiming his rights or interests. (See, e.g., Michael D, supra, 209 Cal.App.3d at p. 136; Cattalini, supra, 72 Cal.App.2d at p. 669.) To the contrary, father’s communications expressed a desire to maintain a relationship with Samantha. Accordingly, an intent to abandon Samantha cannot be inferred from father’s failure to pay child support.
The trial court based its decision that father intended to abandon Samantha on its findings that (1) he failed to pay support, and (2) he said he was going to use support to get back into Samantha’s life by refusing to pay support unless he had contact with Samantha. First, the record does not appear to support the trial court’s finding that father testified if he did not have visitation, he would not pay support. Instead, the record shows that father asked mother to file for child support so he could obtain visitation, and testified he would gladly pay child support so he could see his daughter. It appears that father believed one way for him to obtain visitation, which mother had been refusing to give him, was for mother to first file for child support. Since the controlling issue for an abandonment finding is the parent’s subjective intention (Michael D., supra, 209 Cal.App.3d at p. 136), father’s belief shows not that he wanted to sever his parental relationship with Samantha, but that he wanted to re-establish it.
Moreover, even if father’s testimony is consistent with the trial court’s finding that he refused to pay support unless he got visitation, his testimony does not show he intended to “‘entirely sever, as far as is possible to do so, the parental relation and throw off all obligations growing out of the same, ’” (Brittany H., supra, 198 Cal.App.3d at p. 549), but instead shows he was using the threat of non-support to obtain visitation with his daughter, of which mother had been depriving him. While the trial court viewed this as shirking his responsibility to support Samantha, it shows that father desired a relationship with her and was using the one thing at his disposal to try to get back into his daughter’s life.
The requirement of proving abandonment by clear and convincing evidence stems from a recognition that “grave consequences flow from the permanent severance of the parent-child relationship.” (Angelia P., supra, 28 Cal.3d at p. 915.) “[T]he very essence of the proceeding is the complete and final legal termination of a relationship which is biological in nature and most personal in form.” (Id., at pp. 915-916.) Since parenting is a fundamental right, it “‘is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.’” (Id., at p. 916.) Thus, doubts about a parent’s intent to abandon a child should be resolved in favor of preserving parental rights.
Here, father did not act in a fashion incompatible with parenthood. Father tried to maintain contact with Samantha, but mother compromised his ability to do so by cutting off communication. When she resumed communication, she refused to let father speak with Samantha and did not even discuss child support until she asked him to consent to termination of his parental rights so he would not have to pay child support. Father, however, refused to agree to terminate his parental rights and told mother that if he paid child support, at least he would receive visitation. While mother asserts the intent to abandon that is presumed from failure to pay support was not rebutted because there was no evidence in the record to overcome the presumption, the presumption was rebutted by the trial court’s express findings that father made efforts to send gifts and have contact with Samantha, which mother blocked, and had “quite a few communications” with mother regarding that issue, all of which evidence an intent not to abandon Samantha.
Considering all of the circumstances, there is insufficient evidence of abandonment based on a lack of support. (See, e.g., In re Susan M. (1975) 53 Cal.App.3d 300, 308.) In light of our disposition of this appeal, we need not consider father’s other contentions, including whether there was sufficient evidence that he “left” Samantha within the meaning of section 7822, and whether the trial court erred in its analysis of Samantha’s best interests or in not asking father whether he had Native American ancestry as required by ICWA.
DISPOSITION
The order terminating parental rights is reversed.
WE CONCUR: Poochigian, J., Detjen, J.