Janet Freeman Cochran, under appointment by the Court of Appeal, for Objector and Appellant. Law Offices of Ira L. Stoker and Ira L. Stoker, for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAT-16-003067)
THE COURT APPEAL from an order of the Superior Court of Kern County. Gloria J. Cannon, Judge. Janet Freeman Cochran, under appointment by the Court of Appeal, for Objector and Appellant. Law Offices of Ira L. Stoker and Ira L. Stoker, for Petitioner and Respondent.
Before Levy, Acting P.J., Smith, J. and Meehan, J.
In August 2018, the family court terminated the parental rights of appellant Gregory T. to his now 11-year-old daughter, Sara T., and nine-year-old son, Jonathan T., pursuant to Family Code section 7822. Section 7822 required a determination that Gregory left Sara and Jonathan in the care of their mother, Carolyn T., for one year without providing them support or communicating with them with the intent to abandon them. (§ 7822, subd. (a)(3).) Gregory contends there was insufficient evidence he intended to abandon the children. We concur and reverse.
Statutory references are to the Family Code section.
PROCEDURAL AND FACTUAL SUMMARY
Family Court History
Carolyn and Gregory married in August 1999 and separated sometime around March 2011. They had two children, Sara born in January 2008 and Jonathan born in September 2010. Their marriage was terminated in 2014.
In August 2011, the family court granted Gregory and Carolyn joint legal and physical custody with Carolyn as primary caretaker. The court also granted Carolyn's request to move to Oxnard, California. She moved with the children to Oxnard in June 2012 and Gregory remained in Bakersfield.
Meanwhile, in May 2012, Child Protective Services (CPS) evaluated out a report that the maternal grandfather sexually abused Sara. What conclusion CPS drew, if any, is not in the record. However, in October 2013, Sara reported that Gregory touched her inappropriately and forced her to touch him. Gregory denied the allegations and CPS deemed it inconclusive because the evidence was mixed. Gregory was not arrested as a result or subjected to criminal prosecution. Nevertheless, Sara's therapist, Linda Rio, testified at a custody hearing in November 2014 and opined that Gregory sexually abused Sara. At the conclusion of the hearing, the court suspended Gregory's visitation with Sara and ordered him to seek counseling. It also ordered supervised visits for Gregory with Jonathan on alternate weekends for up to four hours in the Oxnard area. Carolyn was required to pay for supervised visitation and Gregory for his travel expenses. Gregory was also ordered to pay $509 a month in child support.
Gregory's Veterans Administration Disability Rating for Posttraumatic Stress Disorder (PTSD)
In a letter dated October 1, 2015, the Veterans Administration (VA) notified Gregory that effective January 2015, he was awarded 50 percent disability for PTSD. The disability was based on the VA's confirmation of a "stressful event" he experienced in the Navy while assigned as an air traffic controller and documentation of difficulty in adapting to stressful circumstances, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, panic attacks, chronic sleep impairment, anxiety, suspiciousness, depressed mood and occupational and social impairment. Gregory also had a 10 percent disability rating for tinnitus and zero percent for lumbosacral strain.
Petition to Declare the Children Free From Gregory's Custody and Control
In April 2016, Carolyn filed a petition pursuant to section 7822 in Kern County Superior Court, alleging Gregory left the children in her sole and exclusive care and custody for over one year. The petition further alleged Gregory left the children with minimal support and without visiting or communicating with them with the intent to abandon them.
Family Court Services investigated the matter and issued a report in May 2016. The children were interviewed together. Sara remembered her father and said she would be "happy" if the court terminated his parental rights. She said, "He hurts us. The last time I saw him he kicked Jonathan, so I scratched him. Then he scratched me." Jonathan, then five, acknowledged knowing a man named "Gregory" and knew he was his father. He said if the court decided Gregory would no longer be his father and he would not be able to see him, "We could just go home. He's a mean Daddy. He hits Sara. He's mean to me."
Carolyn told the investigating officer that Gregory became increasingly detached from the family during the marriage and did not develop a relationship with the children. He was angry and argumentative to the point of abuse, which was upsetting to the children. He worked sporadically. She always kept Gregory informed of her address and cell phone number and he contacted her periodically regarding money. He had not tried to see the children or call about them since October 2014. He was also $13,000 in arrears in child support. Carolyn filed the petition because Gregory repeatedly asked her approximately a year before to terminate his parental rights so he would no longer be responsible for child support.
Carolyn and Gregory exchanged text messages from June 2015 to April 2016 in which Gregory offered termination of his parental rights several times as a solution to support and visitation issues. On June 16, 2015, after Carolyn told him she had not received support since January, he responded he did not have $800 or $900, adding "Are you sure you just wouldn't rather I terminate my parental rights? Most women would kill to hear that from [their] ex?" On July 27, 2015, in what appears to be a discussion about visitation, he texted, "[W]ho cares if I know the kids are going to wherever for vacation? If it bothers you then let me sign them away [to] you. Then it really won't matter at all because you'd never have to talk to me at all." On November 18, 2015, Gregory asked Carolyn if she was going to allow his parents to see Jonathan. When Carolyn responded that the visitation was for him and not his parents, Gregory texted "All [I] know is we need a different visitation order in place or we may as well just let me sign them off to you." In February 2016, Carolyn texted that she would "get [the] ball rolling" and in April 2016, Gregory asked "So when are we signing over the kids so I don't have to live like [I'm] socially awkward?"
Gregory told the investigating officer he last saw Jonathan " 'at least a year and a half ago.' " He was not sure when he last saw Sara. He said Carolyn did not let him see the children or talk to them on the phone. He had Christmas presents for the children, but Carolyn would not allow him to give them to the children. He and Carolyn agreed that if she lowered the child support payment, he would pay for the supervised visits. Since they made that arrangement, no visitation had occurred. He said he could not afford to pay for visits or court-ordered counseling. He explained he was dealing with depression and PTSD and had been unable to file for visitation with the court. He had not sought mental health treatment through the VA.
The investigator concluded that Gregory had not seen the children since approximately October 2014 and had token contact with them since he and Carolyn separated in 2011. He believed Gregory's lack of follow through in visiting the children and providing child support "would appear to indicate a lack of intent by [Gregory] in maintaining a relationship with these children and intent on [Gregory's] part to abandon the children." He opined "it appears in the children's best interest for this father's rights to be terminated." Dr. McCoy Dean Haddock's Psychological Evaluation of Gregory in October 2016
Gregory was evaluated by Dr. Haddock at the request of his attorney to determine whether Gregory had PTSD and if that could affect his ability to visit his children. Gregory reported that he was a college graduate and employed. He lived with his girlfriend and their child. He described his family relationship as "good." His annual income was $26,000-$30,000, which included disability income from the VA. He was rated at 60 percent.
Dr. Haddock administered 10 neuropsychological instruments, including the Minnesota Multiphasic Personality Inventory (MMPI 2) and Millon Clinical Multiaxial Inventory 3, as well as tests to assess executive functioning and the presence of anxiety, depression and PTSD. He diagnosed Gregory as having Persistent Depressive Disorder (Dysthymia) and PTSD with dissociative symptoms or with delayed expression. The traumatic event causing his PTSD occurred while he was in the Navy onboard an aircraft carrier. Dr. Haddock explained a person with PTSD "may complain of having markedly diminished interest or participation in previously enjoyed activities[,] of feeling detached or estranged from other people or of having markedly reduced ability to feel emotions, especially those associated with intimacy, tenderness and sexuality. The individual may have a sense of a foreshortened future, e.g., not expecting to have a career, marriage, children, or a normal life span." Such a person may also have a "[p]hobic avoidance of situations or activities that resemble or symbolize the original trauma[, which] may interfere with interpersonal relationships and lead to marital conflict, divorce, or loss of job." Dr. Haddock believed Gregory's prognosis for change was good with appropriate treatment and that Gregory appeared to be motivated to participate in treatment. Deposition of Dr. Haddock: April 23, 2018
Dr. Haddock was deposed by Carolyn's attorney. He opined that Gregory's PTSD and depression affected his ability to stay connected with his children. He recommended the VA increase his disability rating to include his children as dependents. Gregory told Haddock he witnessed deaths between 1993 and 1997 while an air traffic controller.
Gregory tried to exercise visitation, but he was unable to visit Sara because she said he molested her. He denied molesting Sara, stating he would never do that. Gregory was working as a security guard when Dr. Haddock evaluated him but expected to be fired because he could not get out of bed to get to work on time. The failure of his marriage to Carolyn was traumatic for him. He wanted to stay married, but they had religious differences that they could not resolve even with marriage counseling. Afterwards, seeing or talking to Carolyn became a trigger for Gregory, causing him to relive his traumatic military experiences. He enjoyed, however, speaking to the children and it was a loss to him when he could not visit them. Sometimes he could not go to the visits; he did not know why. Dr. Haddock believed any choice Gregory might otherwise have to visit the children was influenced by his PTSD, which caused him to shut down. The allegation he molested Sara was also traumatic for him and may have influenced his ability to visit.
Asked whether he could assess Gregory's actual intent to abandon his children, Dr. Haddock responded "[The] [o]nly way I can form an opinion in that regard is what he told me, that he did not intend to abandon his children." Gregory told Dr. Haddock he could not visit the children because Carolyn would not let him, he could not afford it and because of his PTSD. Dr. Haddock did not believe those reasons were inconsistent. He said Gregory "could be" using his reaction to Carolyn as an excuse to justify his actions. Dr. Kristina Roberts's Independent Medical Evaluation of Gregory in June 2018
Gregory informed the family court he intended to raise a defense of inability to form the intent to abandon the children. The parties stipulated Carolyn could hire a medical examiner to independently evaluate Gregory. Carolyn hired Dr. Roberts to determine whether Gregory suffered from PTSD or other mental condition(s) and could form the intent to abandon his parental responsibilities and to ascertain the severity and permanence of any such condition(s). Dr. Roberts did not produce a report but testified at the abandonment hearing. She evaluated Gregory in June 2018.
The Abandonment Hearing: August 2018
A. Carolyn's Testimony
Carolyn testified that Gregory visited the children unsupervised every other weekend in Bakersfield until November 2013 when the court suspended his visits. Until then, she transported the children to and from Bakersfield for visits. In November 2013, the court suspended Gregory's visits with Sara and modified his visitation with Jonathan to supervised visits every other weekend. Visits with Jonathan continued in Bakersfield supervised by a private monitor. Carolyn transported Jonathan to the visits. In October 2014, Tri-County Regional Center in Oxnard was designated as the monitor for supervised visitation. Gregory did not exercise his visitation rights after October 2014. Her communication with Gregory after that was very limited. He texted her and they had a couple of brief telephone conversations. He did not ask for assistance with visitation and occasionally asked about the children's welfare. He did not send the children any gifts or pictures of himself.
Gregory paid child support after October 2014 through a wage garnishment. However, he complained about the garnishment so she agreed to a reduction in child support to $300 a month. The reduction was also intended to help pay his travel expenses for visitation. She could not remember when they made their agreement but said they put it in writing. He did not exercise visitation after the reduced child support arrangement. He paid her child support per their agreement from January 1, 2015, to April 2016. He missed several payments in the middle of 2017.
Gregory told Carolyn on multiple occasions he could not afford to pay child support and he wanted his parental rights terminated. His last such request was two years before. She asked him who was objecting to the termination of parental rights and he said his parents were objecting.
The children have special needs; Jonathan has educational autism and Sara has attention deficit hyperactivity disorder. They were well adjusted, happy and doing well in school. Gregory had not attended any of the children's school activities since 2014 but occasionally inquired about their progress in school. The children did not want to visit their father and were very anxious about it. Sometimes Sara would hide behind Carolyn when she dropped them off for visits and they exhibited signs of distress afterward. They had multiple "wet accidents" after visitation. Many times, Jonathan was "catatonic" and did not respond well for several hours after visitation. On one occasion, Jonathan threw up at a park after a visit. Carolyn and Gregory went to marriage counseling for a while, but they did not participate in family counseling. Rio treated Sara for approximately two years beginning in October 2013 after the maternal grandmother observed Sara twisting her nipples while showering.
Carolyn did not prevent Gregory from seeing the children and the children never asked about him. He always knew where Carolyn and the children lived as well as Carolyn's telephone number.
B. Testimony of Cheree Kashwer, Ph.D.
Dr. Kashwer testified as an expert in family counseling. She met with the children separately for a little over an hour in early 2017 at the request of Carolyn's attorney to assess their feelings about Gregory. She interviewed Carolyn for approximately an hour before interviewing the children. She did not contact Gregory. The children had only positive feelings about their mother. They described their relationship with her as "safe, comfortable, loving." The children had not seen their father in approximately two years and their memory of him was limited. However, their memories of him were "fear based." They had remembered him as mean and hitting and possibly pushing them, although they did not provide any details such as when these incidents happened or where. She did not believe the children would suffer any adverse emotional consequences if the court terminated Gregory's parental rights and she did not believe Carolyn attempted to alienate the children from Gregory.
C. Testimony of Linda M. Rio
Rio, a licensed marriage and family therapist, began counseling Sara in 2013 at Carolyn's request. During their sessions, Sara disclosed that Gregory hurt her, and she was very fearful of him. She was also exhibiting symptoms of PTSD. In November 2013, Rio filed a report with CPS. She continued to treat Sara consistently through 2016 and then tapered down to a few times in 2017. Over time, Sara's symptoms improved. In 2014 or 2015, Gregory left Rio two voice messages stating he was "supposed" to call her and asking her to return his call. They never made contact because even though she returned his calls, he did not return hers. Rio observed that the children had a very strong bond with Carolyn but gave no indication they were bonded to Gregory.
D. Testimony of Dr. Kristina Roberts, Ph.D.
Dr. Roberts provided expert testimony on the effect of Gregory's PTSD based on Dr. Haddock's opinions contained in his psychological evaluation and deposition as well as her own conclusions from her evaluation of Gregory. Gregory was initially uncooperative and attempted to leave the interview, stating he had a child to pick up, but ultimately acquiesced and spent three hours with her. She administered many of the tests Dr. Haddock conducted, however, the results of some were different. Gregory tested in the mild range for anxiety on the Beck Anxiety Inventory for Dr. Haddock but in the severe range for Dr. Roberts. He also tested as having severe depression on the Beck Depression Test. Symptoms of severe depression include suicidal ideation, sadness, frequent crying, fatigue, and an inability to get out of bed or maintain day-to-day activities, including hygiene. Also, severely depressed people isolate themselves from other people and avoid situations that they used to find pleasurable. It impaired their daily living. She discussed Gregory's depression with him and asked if he ever attempted suicide. He stated that he did make two attempts. He did not remember when he last attempted suicide but estimated it was a few years before. He tried to use a firearm but was unsuccessful.
Gregory's results on the Millon Clinical Multiaxial Inventory, a personality test, indicated traits associated with schizoid personality disorder, which is a person who generally prefers to be by themselves and prefers not to have relationships with others, including family members. Such a person may be called a "loner" and does not get enjoyment out of relationships with others. They do not generally form close relationships. Dr. Roberts explained these traits usually appear at the age of 16 or 17 and endure throughout adulthood. Such people have an internal inability to tolerate social situations but can be helped by therapy. Dr. Haddock performed the same test with very similar results, although he used the third instead of the fourth edition of the test. Dr. Roberts said there was very little difference in their results.
Dr. Roberts did not find any evidence in the testing that Gregory had high-functioning autism, previously classified as Asperger's Disorder. However, she concluded through her observations and questions that he had a moderate to high potential for that diagnosis, especially since he had two autistic children. She noticed Gregory had some of the traits of Asperger's Disorder, such as difficulty in social relationships and reading social cues from other people, and lack of empathy and understanding other people's emotions.
Asked whether she saw any difficulty for Gregory in forming an intent to visit the children, Dr. Roberts responded, "I did." Her primary data came from the MMPI, which showed severe symptoms in many areas that looked like mental confusion and avoidance of people and irritability. As a psychologist, she said she would reframe the question as whether Gregory did not intend to visit. A person with the potential for Asperger's Disorder and possibly of a personality disorder and the attendant limitations on social interactions and empathy would avoid contact whenever possible, especially if there is some perceived difficulty in that visit. She explained, "If everything else is equal and it's fairly easy or if they're compelled in some way, they may visit. But the tendency is to have a preference not to." If, for example, Carolyn was dropping the children off and picking them up from visits, Gregory would likely visit them unless he perceived some animosity on Carolyn's part or anticipated difficulty interacting with the visitation monitor. If that occurred, he would choose not to visit. He may also not visit if he thought the drive was going to be tedious, which he mentioned. She stated, "Driving a longer distance, yeah, there would be a preference to avoid those situations; thus, choosing not to visit or intending not to visit." Dr. Roberts believed Gregory's failure to visit since 2014 was consistent with his personality profile and the likelihood of him visiting consistently in the future was not high. Rather, it would be sporadic. He may visit once or twice and then go months or even years without visiting, which could be harmful to the children, especially Jonathan since autistic children need consistency and struggle when strangers are reintroduced into their lives. She believed Gregory could change if he was motivated. He did not ask her the results of his tests or ask for any help.
A person with Gregory's behavior could be a danger to children unintentionally because they cannot read their cues and would not respond to their needs or understand why they might be crying. Also, not being able to empathize could lead to unintended safety issues. The children's special needs could also present an obstacle for Gregory, although he did not mention that to Dr. Roberts. Gregory told Dr. Roberts he did not visit the children because Carolyn did not facilitate visitation. However, Dr. Roberts did not see any evidence of that in the file. It appeared to Dr. Roberts that Carolyn was doing what she could to facilitate visitation.
Dr. Roberts confirmed that Gregory had PTSD but was unable to ascertain the severity because there was an extreme amount of overreporting on the MMPI and the results of the Trauma Symptom Inventory Test were invalid. She concluded his PTSD was mild to moderate based on his interview. As to whether he was interested in seeing the children, she said his interest "waxes and wanes," which had to do with his symptoms of PTSD and social aspects of what appeared to be an autistic disorder and a longstanding personality disorder. She believed Gregory would visit sporadically even if all conflict were removed because he was overly sensitive to situations and viewed even neutral situations as conflictual. He misunderstood or over-interpreted situations and blamed others when he should be taking partial responsibility. She believed it was fair to say that in assessing whether to visit, Gregory was deciding whether it was worth it, and he tended to conclude that it was not.
E. Gregory's Testimony
Gregory testified he had not visited Sara since the court's order suspending visitation in November 2013, but he wanted to visit her. He had not visited Jonathan since January 2015 because he could not afford to pay for visitation. He investigated the cost to travel to see him in Oxnard and estimated a cost of $350 to $400. In January 2015, Gregory was living in a condo owned by his parents. They helped him financially and he occasionally gave them a few hundred dollars for rent. His girlfriend, Sadie, lived with him along with her two children. Sadie was unemployed and did not receive child support. In February 2015, they had a son, Dean, who was autistic and had seizures. Gregory was working a 40-hour work week in early 2015 and earning approximately $11 an hour. For the rest of the year, he worked part-time as a security guard.
Gregory attempted to contact the children once every two to three months, usually for birthdays and holidays. He initiated contact by texting Carolyn and he was told they were busy, or it would violate a court order. His requests usually turned into an argument. He never sent cards because he always wondered if the children received them. He had a "trunk and a half full of Christmas presents for the children." He purchased dolls for Sara and cars and a race track for Jonathan, but he was told he could not give the children the presents unless he said they were from Santa Claus. They could not be from him.
Gregory did not specifically ask Carolyn to terminate his parental rights, but the subject came up during heated arguments. During a telephone conversation, she told him to let her know if he had any reservations about her filing to terminate his rights. He told her not to do it because he had reservations, but she had already started the process. He denied contesting the termination of his rights because of his parents. He told Carolyn he and his parents did not want her to do it.
Gregory did not miss any support payments in 2016 and 2017 but missed several months in 2015 while working at a summer camp. He gave Carolyn a lump sum payment at the end of camp. He did not attempt to modify the support order to avoid having to pay the court-ordered amount. Instead of using the money available to him from the reduced child support for visitation, he used it to pay his bills. When questioned by his attorney, he testified he was only receiving 10 percent disability from the VA in 2015, which was approximately $100 a month. In 2016, his disability rating was increased to $1,500 a month. It increased to 90 percent in 2018 and he was receiving just under $2,000 a month. It was his only source of income as he was not working. Seventy percent of his disability was for PTSD.
Gregory testified that he was "very depressed" after the court hearing in November 2014. His father had a heart attack, his grandfather died, he lost his job and Dean was soon to be born.
F. Testimony of McCoy Dean Haddock, Ph.D.
Dr. Haddock, a forensic neuropsychologist, testified as an expert on whether Gregory has PTSD and how it affects his conduct. Dr. Haddock concluded Gregory has PTSD, an anxiety disorder that often triggers depression. Gregory reported symptoms during their interview consistent with PTSD—distressing and intrusive thoughts of traumatic experiences, flashbacks from those experiences, startle responses, emotional numbing, and difficulty sleeping, concentrating and managing his anger. He had difficulty confronting people, including people he worked with, which partially accounted for his inability to maintain employment. Mainly, he avoided any conflict with Carolyn because it triggered flashbacks.
Gregory witnessed two traumatic events while in the Navy. In one, he saw a sailor cut in half when a wire used to force airplanes landing on an aircraft carrier to come to a full stop broke. He also saw an explosion very near where he was directing traffic, which resulted in the death of a sailor and traumatic injury to two others. He was the first responder and saw blood splashed on walls and body parts all over the room. Dr. Haddock testified Gregory used numbing to avoid the feelings and thoughts associated with the memories. A person traumatized this way may also feel guilt over having survived and contemplate suicide.
Dr. Haddock opined that Gregory was attempting to avoid a difficult situation as he perceived it when he did not visit the children. Gregory expressed interest in his children when talking to Dr. Haddock. He said he cared about and loved them. He wanted to be with them and give them gifts but avoided any contact with Carolyn because it triggered his traumatic symptoms. He suffered flashbacks and nightmares.
Dr. Haddock testified PTSD was not what stopped Gregory from visiting the children, it was the triggering of Carolyn. Even though Carolyn was not at the visits, just the anticipation that she could be there may prevent Gregory from visiting the children. PTSD is treatable but not curable. Gregory would visit the children if he could afford to travel to the location and was assured he would not see Carolyn.
At the conclusion of testimony, the family court admitted exhibits into evidence, including the text messages, Gregory's 2015 VA rating, Dr. Haddock's deposition, and the January 2015 judgment. Dr. Haddock's October 2016 report was deemed to be inadmissible hearsay.
The Family Court's Ruling
The family court granted Carolyn's petition, finding clear and convincing evidence under section 7822 that Gregory left the children in Carolyn's care and custody for a year with the intent to abandon them. The court found compelling the facts that Gregory never exercised visits or paid child support even after his income increased. The court did not find Gregory's testimony regarding his attempts to contact the children credible. Nor did the court find credible Dr. Haddock's testimony that PTSD impaired Gregory's ability to visit. On that issue, the court found Dr. Roberts "far more persuasive." Gregory's actions along with the text messages reflected a clear intention on his part to abandon the children. The court also found it was in the children's best interest to terminate Gregory's parental rights.
I. Terminating Parental Rights
California's Family Code authorizes the termination of parental rights to facilitate the adoption of a child in certain circumstances. The purpose of terminating a parent's rights and freeing a child for adoption "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.)
Under section 7822, a court may declare a child free from a parent's custody and control if the parent has abandoned the child. Abandonment occurs when a "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." (§ 7822, subd. (a)(3).) "The failure to provide support or the failure to communicate 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. (§ 7822, subd. (b).) A declaration of freedom from custody and control terminates all parental rights and responsibilities to the child. (§ 7803.)" (In re E.M. (2014) 228 Cal.App.4th 828, 838.)
"Thus, a section 7822 proceeding is appropriate where 'three main elements' are met: '(1) the child must have been left with another; (2) without provision for support or without communication from ... his parent for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done "with the intent on the part of such parent ... to abandon [the child]." ' " (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).) While section 7822, subdivision (b) creates a presumption of an intent to abandon a child when the parent either fails to support or fails to communicate with a child for more than one year, whether a parent abandoned a child is only relevant if the parent left the child with another.
Leaving a child in the care of another in the context of abandonment signifies a voluntary act on the part of a parent to abandon his or her parental role. (In re H.D. (2019) 35 Cal.App.5th 42, 51.) Thus, as a general proposition, a parent whose child has been taken away by court order without the parent's consent has not abandoned the child. (In re Cattalini (1946) 72 Cal.App.2d 662, 665.) Parental inaction, however, following a custody order may constitute a leaving with intent to abandon the child. (Id. at pp. 665-666.) Indeed, "[n]umerous appellate decisions have long agreed that the leaving-with-intent-to-abandon-the-child requirement of section 7822 can be established by evidence of a parent's voluntary inaction after an order granting primary care and custody to the other parent." (In re Marriage of Jill & Victor D. (2010) 185 Cal.App.4th 491, 505.)
"Abandonment" and "intent" are questions of fact for the trial court, which must be made by clear and convincing evidence. (Allison C., supra, 164 Cal.App.4th at p. 1011; In re Angelia P. (1981) 28 Cal.3d 908, 924.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. [Citation.] It must be ' " 'sufficiently strong to command the unhesitating assent of every reasonable mind.' " ' " (T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238.)
On a challenge to the sufficiency of the evidence to support the trial court's order, we determine whether there is "substantial evidence from which a reasonable trier of fact could make the necessary findings based on the clear and convincing standard." (In re Isayah C. (2004) 118 Cal.App.4th 684, 694.) In so doing, we resolve all conflicts in the evidence in favor of the respondents and indulge in all legitimate and reasonable inferences to uphold the judgment. (Allison C., supra, 164 Cal.App.4th at pp. 1010-1011.) "[W]e do not pass on the credibility of witnesses, resolve conflicts in the evidence or determine the weight of the evidence. [Citation] We simply determine whether there is substantial evidence, believed by the trial court, that supports the court's findings." (In re Marriage of Jill & Victor D., supra, 185 Cal.App.4th at p. 503.) The appellant must show there is no evidence of a sufficiently substantial nature to support the court's finding or order. (Allison C., supra, at p. 1011.)
II. Gregory Forfeited Appellate Review of Whether He "Left" the Children
As a preliminary matter, we address Gregory's contention, raised for the first time on appeal, the evidence was insufficient to prove he "left" the children within the meaning of section 7822. He argues the court's orders issued in November 2014 suspending his visits with Sara and instituting supervised visits with Jonathan in Oxnard constituted a judicial "taking" and that his failure to seek a modification of the court's orders was not inaction but attributable to his mental illness. The doctrine of forfeiture, however, bars Gregory from raising this issue on appeal.
"A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court." (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) Forfeiture prevents a party from "standing by silently until the conclusion of the proceedings." (Id. at p. 222.)
Gregory did not raise the issue of whether he "left" the children as a defense to Carolyn's petition to free them from his custody. Instead, his sole argument before the family court was whether he intended to abandon them by not communicating with or supporting them. "A party may not assert theories on appeal which were not raised in the trial court." (In re Dakota, supra, 132 Cal.App.4th at p. 222.) Having failed to raise the issue at trial, Gregory has forfeited the right to raise it on appeal.
III. A Presumption of Abandonment Arose
It is undisputed that Gregory did not see or communicate with Sara after November 2013 and with Jonathan after January 2015 to April 2016 when Carolyn filed the petition to declare the children free from Gregory's care, custody and control. This time frame exceeds the one-year period required in section 7822 for a finding of abandonment. Consequently, a presumption of abandonment arose. Gregory then had the burden of introducing evidence to contradict the presumed fact of his intent to abandon the children. (In re Rose G. (1976) 57 Cal.App.3d 406, 423.)
The family court also found that Gregory did not support the children, which would also create a presumption of abandonment if supported by the evidence. The court stated Gregory failed to support the children "after his income increased." Gregory testified that his income increased in 2016. However, Gregory also testified he did not miss any child support payments in 2016 and his testimony was undisputed. Consequently, the evidence does not support a presumption of abandonment based on failure to pay child support. --------
Gregory contends he rebutted the presumption by establishing his PTSD and other personality traits, as well as Carolyn's interference, prevented him from exercising his visitation rights. We agree characteristics of Gregory's personality and mental illness rebutted a presumption his failure to communicate with the children signified an intent to abandon them. We disagree Carolyn interfered with his efforts to visit the children. If anything, she went to great lengths to facilitate it, driving the children to and from Bakersfield so that Gregory could visit them and accepting a reduction in child support to defray his travel expenses.
IV. Substantial Evidence Does Not Support A Finding Gregory Intended to Abandon the Children
" 'In order to constitute abandonment there must be an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.' " (In re George G. (1977) 68 Cal.App.3d 146, 160.) "The controlling issue for a finding of abandonment is the subjective intention of the parent." (In re Christina P. (1985) 175 Cal.App.3d 115, 131.) However, intent to abandon " 'may be found on the basis of an objective measurement of conduct, as opposed to stated desire.' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 550.) "[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." (In re Neal (1968) 265 Cal.App.2d 482, 488.) Thus, the question is whether Gregory's failure to communicate with or visit the children from an objective standpoint evidences an intent to abandon them despite his stated desire not to abandon them. We conclude it does not.
The evidence established that Gregory suffers from several mental illnesses and possesses traits of others that severely impact his desire for interpersonal relationships and his ability to function. Specifically, he developed PTSD after witnessing a catastrophic and gruesome death scene aboard a naval vessel. It was first diagnosed by the VA, although exactly when is unclear. In any event, the VA assigned a 50 percent disability rating to Gregory for the diagnosis in January 2015 based on criteria that are relevant here, i.e., difficulty adapting to stressful circumstances, anxiety, depressed mood and disturbances of motivation and mood. Doctors Haddock and Roberts confirmed the diagnosis and Dr. Haddock testified as an expert on PTSD and how it affected Gregory's conduct. Although the court did not find Dr. Haddock's opinion credible that Carolyn triggered Gregory's PTSD, there is no dispute that the diagnosis caused him to avoid difficult situations. Gregory also suffered from depression and anxiety. Dr. Roberts opined that his depression was severe and associated with symptoms such as suicidal ideation, fatigue, inability to get out of bed, and difficulty with day-to-day activities. She explained such a person would isolate him- or herself and avoid situations he or she previously found pleasurable. Dr. Roberts also opined that Gregory had personality traits consistent with a longstanding schizoid personality disorder. Such a person prefers to be alone and does not derive enjoyment from close relationships, including close relationships with family members. She also found Gregory had personality traits consistent with a moderate to high potential for Asperger's Disorder. People with Asperger's Disorder do not detect social cues from others and are hyper-focused on narrowly defined interests.
Viewed in their totality, Gregory's various psychiatric diagnoses depict a person with an innate aversion to close relationships and difficult situations. Even if Gregory had a desire to pursue a relationship with his children, depression and/or anxiety may overwhelm his motivation to take the necessary steps.
Gregory testified he attempted every several months to communicate with the children by telephone. However, he first had to go through Carolyn by texting her to see if the children were available. According to Gregory, Carolyn always had some excuse as to why he could not speak to the children. Although there is no evidence Carolyn thwarted his efforts to speak to the children, evidence of his perception of Carolyn as hostile to him and his inability to maneuver a stressful situation explains why he would relent and forfeit a conversation with them.
As to Gregory's failure to visit the children, which was the focus of Carolyn's case for abandonment, Dr. Roberts testified his mental health and personality interfered with his ability to formulate an intent to visit. Specifically, she found he had severe symptoms such as mental confusion, avoidance of people and irritability. However, she believed the inquiry should be whether Gregory intended not to visit. A person with Gregory's personality traits would chose not to visit, especially if he perceived some difficulty in doing so, but may visit "[i]f everything else is equal and it's fairly easy or if they're compelled in some way ...."
The problem with Dr. Roberts's opinion to support abandonment is that it does not answer the question whether Gregory's failure to communicate with or visit the children evidences an intent to abandon them in light of her testimony he suffers from mental confusion, severe depression, anxiety, and avoidance of people and stressful situations. She testified he would visit if everything else is equal and fairly easy. However, everything is not equal or easy for someone like Gregory who suffers with mental illness.
We conclude Gregory's failure to visit or contact the children on this record applying the clear and convincing standard of proof is insufficient to terminate his parental rights under section 7822.
The order terminating parental rights is reversed.