In re M.L. CA4/1 ( 2023 )

Filed 7/11/23 In re M.L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re M.L., a Minor.
D081334
S.L. et al.,
Plaintiffs and Respondents, (Super. Ct. No. 21AD000707N)
v.
J.H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kelly C. Mok, Judge. Affirmed.
Paul A. Swiller, for Plaintiffs and Respondents, S.L. and M.L.
Liana Serobian, under appointment by the Court of Appeal, for
Defendant and Appellant, J.H.
Mad.L. (Mother) and J.H. (Father) are parents to 14-year-old M.L.
M.L.’s stepfather, S.L. (Stepfather), petitioned to terminate Father’s parental
rights on the basis that Father left M.L. in Mother’s care for a period of one
year without provision or support, or without communication, with the intent
to abandon M.L. (Fam. Code,1 § 7822.) After conducting an evidentiary
hearing, the trial court granted the petition. Father appeals and contends:
(1) Stepfather lacked standing to seek the termination of Father’s parental
rights under section 7822, subdivision (a)(3); and (2) substantial evidence did
not support the order terminating Father’s parental rights, nor was it in
M.L.’s best interests to do so. We conclude Stepfather was not without
standing to pursue the termination of Father’s parental rights and that
substantial evidence supports the trial court’s order granting the petition.
We therefore affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Family Background
Mother and Father were never married and had an “on-again off-again
relationship.” During their relationship, M.L. was born in 2008. A month
after M.L.’s birth, Mother called the police when Father engaged in a
physical altercation with her neighbor. Mother alleged that during the
incident, Father grabbed M.L. from her arms and punched Mother in the
nose. Father pleaded guilty to child endangerment, and following his
criminal conviction, custody orders were issued that awarded Mother
physical custody of M.L. and allowed Father unsupervised visitation.
In 2011, the custody orders were modified to award Mother sole legal
and physical custody after Father attempted suicide before a visit with M.L.
The visitation component of the orders authorized Father to have up to eight
hours of supervised visitation per week. Although Father’s initial visitation
during this period was supervised by a family member, Mother later allowed
him to have unsupervised visitation in violation of the court’s order for
approximately six months. She allowed Father to have unsupervised
1 Undesignated statutory references are to the Family Code.
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visitation because she observed him make positive changes in his life that
made her “really hopeful.” However, during this period of unsupervised
visitation, M.L. made comments that caused Mother to believe Father was
using drugs and sleeping while caring for M.L.
Mother expressed her concern to Father about his suspected drug use,
and following this discussion, he moved to Australia for approximately seven
months. During his absence, Father had video “Facetime” calls with M.L.
approximately once a week. When he returned from Australia, Mother
informed him that she would be enforcing the court order that required his
visitation with M.L. to be supervised.
To facilitate the supervised visits, Father obtained an independent
supervisor and had approximately eight visits with M.L. Following the
eighth visit, the visitation monitor stopped working with Father due to
nonpayment. Father made attempts to find another suitable supervised
visitation monitor, but he did not recommence visitation with M.L. His final
visit with M.L. was on June 30, 2014. Father moved to Utah in July 2017
and did not have any further contact with Mother or M.L. following his move.
In the meantime, Mother and Stepfather met in 2013 and were married
in 2014. Stepfather was introduced to M.L. in 2013 and they developed a
“father/daughter” relationship. Mother and Stepfather have their own two
children, who live together with M.L. as “one big happy family.” At M.L.’s
request, her last name was legally changed to Stepfather’s last name.
According to Mother, M.L. has repeatedly asked to be adopted by Stepfather.
The Petition and Trial
On October 19, 2021, Stepfather filed a petition seeking the
termination of Father’s parental rights in order to facilitate his petition for
M.L.’s adoption. Stepfather alleged that Father left M.L. in Mother’s custody
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for a period of one year without providing for M.L.’s support, or without
communication, with the intent to abandon her. Mother filed a declaration in
support of Stepfather’s petition to terminate Father’s parental rights.
The San Diego County Health and Human Services Agency (Agency)
completed an investigation and report related to Stepfather’s petition.2 The
Agency spoke with M.L. and she expressed that she understood the meaning
of adoption and wanted to be adopted by Stepfather. She referred to her
Stepfather as “daddy” or “papa,” and the Agency opined that M.L. and
Stepfather shared a “wonderful relationship.” M.L. indicated that she did not
intend to have contact with Father in the future.
The Agency concluded that Father last contacted M.L. in the spring of
2016 and that he had not provided financial support since July 2020.
Consequently, the Agency concluded that Father’s “lack of contact and
support for a period exceeding one year provides presumptive evidence of his
intent to abandon his daughter.” The Agency recommended that the court
grant the petition and declare M.L. free from Father’s custody and control.
The trial court conducted an evidentiary hearing related to the petition
on October 20, 2022. The court heard testimony from Mother and Father and
received several exhibits into evidence, including family photos, the
supervised visitation monitor’s report documenting Father and M.L.’s visits,
2 Upon the filing of a petition to free a child from the custody and control
of a parent, the probation officer, qualified court investigator or department
administering the public social services program “shall immediately
investigate the circumstances of the child and the circumstances which are
alleged . . . .” (§ 7850.) The investigator “shall render to the court a written
report of the investigation with a recommendation of the proper disposition to
be made in the proceeding in the best interest of the child.” (§ 7851, subd.
(a).) The court “shall receive the report in evidence and shall read and
consider its contents in rendering the court’s judgment.” (§ 7851, subd. (d).)
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a document listing the history of Father’s child support payments, and the
Agency’s report recommending that the court terminate Father’s parental
rights. We have reviewed and considered these exhibits in deciding this
appeal.
Mother testified that Stepfather first met M.L. in 2013. She observed
their relationship develop throughout the “different stages” of M.L.’s life.
Stepfather participated in M.L.’s interests in various ways, like playing
guitar with her and purchasing a pitching machine to help her practice
softball. Mother described their relationship as “very sweet” and “like
father/daughter, but also they have a friendship.” According to Mother, M.L.
was sad that Stepfather’s name was not on her birth certificate like her
siblings, and she expressed a desire to be adopted by him. Mother supported
Stepfather’s petition to terminate Father’s parental rights to facilitate M.L.’s
adoption.
Mother also described an incident in 2016 in which Father encountered
Stepfather and M.L. at a farmer’s market. Although Father had not had any
visitation with M.L. in two years, he approached M.L. and picked her up.
Father told M.L. that Mother and Stepfather were preventing him from
visiting with her. After this incident, M.L. told Mother that she was scared
and uncomfortable by the interaction because she was fearful Father would
hurt Stepfather or her younger brother.
Mother testified that she had not received any communication from
Father following his move to Utah in 2017. She stated that her phone
number and email address remained the same and that she had remained at
the same physical address until three months prior to the evidentiary
hearing. Father did not send any gifts or cards to M.L. during this time, nor
did Mother receive any payments relating to M.L.’s care aside from the child
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support payments that were garnished from Father’s paychecks. Mother did
not receive any child support payments for a one-year period, from August
2020 to September 2021.
Father testified that he did not act with the intent to abandon M.L.
However, he acknowledged that he had not had any visitation with her since
2014, aside from the farmer’s market incident in 2016, even though the
custody and visitation orders allowed him up to eight hours of visitation per
week. Father disputed Mother’s testimony relating to the farmer’s market
incident, testifying that M.L. smiled and approached him and that she was
not frightened by their interaction.
Father explained that he moved to Australia in 2014 to manage his
family’s affairs following the death of his sister. He intended to return from
Australia prior to M.L.’s birthday in December of that same year, but he
decided to remain for a longer time period after Mother informed him she
would be enforcing the court order requiring supervised visitation. Father
acknowledged that he did not successfully obtain a supervised visitation
monitor after his return from Australia, nor did he return to court to request
a change in the visitation order to allow for unsupervised visitation. He
testified that he did not return to court to request such a change because he
hoped Mother would “snap out of it” and stop requiring the supervision.
Father explained that he moved to Utah in 2017 for a job opportunity
that would assist him in paying child support for M.L. He asserted that he
discontinued child support payments in 2020 because of the COVID-19
pandemic, unemployment, and health-related issues. However, he admitted
that aside from a period between February 2020 and May 2020, he was
employed. According to Father, he did not attempt to contact M.L. after he
moved to Utah because he did not know where she lived and whether he was
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allowed to contact her. Consistent with Mother’s testimony, he testified that
he had not had any contact with Mother since 2017.
Following the presentation of evidence, the trial court found, by clear
and convincing evidence, that Father intended to abandon M.L and that the
termination of his parental rights was in M.L.’s best interests. In rendering
its findings, the court commented that there was “no doubt that [Father]
loves [M.L.],” and that the evidence demonstrated they had a good
relationship from 2011 to 2014. However, the court found that the last
contact between Father and M.L. was in 2014, aside from the incident in
which Father approached M.L. at the farmer’s market in 2016. The court
stated that Father’s “surprise contact” at the farmer’s market in 2016 was
not in M.L.’s best interests considering he had not had contact with her in
two years. By contrast, Stepfather and M.L. had bonded “as a child and
father” and M.L. was desirous of the petition being granted.
Although the trial court acknowledged Father’s attempts to find an
appropriate visitation supervisor, it found there was no evidence that Father
“went back to court to try and change the orders or that he made any real
attempts to satisfy all of the court’s concerns in order to get his supervised
visits changed to unsupervised visits.” The court noted that although Mother
had the same phone number and email address since 2017, Father had made
no attempts to communicate with M.L. The court further found that Father’s
last child support payment was in July 2020 and that he did not provide
financial support for M.L. until September 2021—a period of over a year.
Although Father testified that he experienced financial challenges in 2020,
the court noted that he started a new job in May 2020 and yet he did not
make child support payments.
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Consequently, the trial court granted the petition, finding by clear and
convincing evidence that Father failed to communicate with and provide
financial support for M.L. for a period of over one year, and that he did so
with the intent to abandon her for the purposes of section 7822. The trial
court further found that it was in M.L.’s best interests to terminate Father’s
parental rights.
DISCUSSION
Father contends Stepfather lacked standing to petition for the
termination of his parental rights under section 7822, subdivision (a)(3),
because only the “other parent” has the statutory authority to file such a
petition. Consequently, Father argues the trial court did not have
jurisdiction to adjudicate the petition because of Stepfather’s lack of standing.
Father alternatively argues that, assuming the trial court did have
jurisdiction, the order granting the petition was not supported by substantial
evidence and was not in M.L.’s best interests. We conclude Stepfather had
standing to file the petition to terminate Father’s parental rights as an
“interested party” pursuant to section 7841 and that the trial court’s order
was supported by substantial evidence.
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I.
Stepfather had Standing to Seek the Termination of Father’s Parental
Rights as an Interested Party3
A proceeding may be brought to free a child from the custody and
control of a parent under section 7822 if, as relevant here, “[o]ne 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).) “Actions to free minor children from the custody
and control of either or both parents are governed by sections 7800 through
7895.5. [Citation.] The persons or entities authorized to file petitions in such
actions are set forth in two sections of the statute, sections 7840 and
7841 . . . .” (T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1433.) Section 7841
provides that an “interested person may file a petition under this part for an
order or judgment declaring a child free from the custody and control of
either or both parents.” An interested person is defined as one who “has filed,
or intends to file within a period of 6 months, an adoption petition under
Sections 8714, 8802, or 9000 . . . .” (§ 7841, subd. (b).)
Inexplicably, Father fails to cite to section 7841 even though it
expressly defines who may file a petition under section 7822 and is
extensively addressed in the respondent’s brief. Without discussing the
relevant statute, Father contends that the language of section 7822,
3 Stepfather argues that Father forfeited his argument relating to
standing by failing to object at trial. Although the law does not support
Father’s standing argument, the issue he raises involves a pure question of
law and statutory interpretation and is therefore not subject to forfeiture.
(See In re P.C. (2006) 137 Cal.App.4th 279, 287 [“A question of law is not
subject to the doctrine of forfeiture.”].)
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subdivision (a)(3), allows only for the “other parent” to file a petition for the
termination of parental rights. Contrary to Father’s argument, section 7841
plainly and expressly allows a stepparent to file a petition under section 7822
if they have concurrently filed a petition for adoption or intend to do so within
six months. (§ 7841, subd. (b).) By contrast, section 7822, subdivision (a)(3),
simply defines the triggering events upon which a petition for the
termination of parental rights may be based when one parent has abandoned
a child with “the other parent,” and it does not define who may bring forth
such a petition. (See § 7822.)
Father does not cite to any precedent supporting his position, but
instead argues that this matter involves an issue of first impression.
However, established case law has repeatedly affirmed orders granting
petitions filed by stepparents pursuant to section 7822. (See Adoption of
Allison C. (2008) 164 Cal.App.4th 1004, 1007 (Allison C.) [affirming an order
granting a stepparent’s petition to terminate a father’s parental rights under
section 7822 that was filed “as a precursor [to the stepparent’s] adoption of
[the child]]; In re Amy A. (2005) 132 Cal.App.4th 63 (Amy A.) [affirming an
order granting a petition filed by a stepparent to terminate a father’s
parental rights pursuant to section 7822 so the stepparent could pursue the
adoption of the child].) While a stepparent’s standing to petition for the
termination of parental rights was not directly raised as an issue in these
cases, we conclude that the repeated affirmance of orders granting
stepparents’ petitions under section 7822 reflects what statutory authority
plainly allows—that stepparents may file such petitions when the conditions
set forth in section 7841 are met. (See San Joaquin & Kings River Canal &
Irrigation Co. v. County of Stanislaus (1908) 155 Cal. 21, 28 [“it does not
follow that the dictum of a court is always and at all times to be discarded. A
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correct principle of law may be announced in a given case, although it may
not be necessary to there apply it.”].)
Accordingly, applying the language of section 7841 to the circumstances
of this case, Stepfather clearly had standing to file a petition to terminate
Father’s parental rights. Stepfather filed a petition for M.L.’s adoption
concurrently with his section 7822 petition and therefore plainly meets the
definition of an “interested party” under section 7841. Interested parties may
file petitions pursuant to section 7822 and therefore Stepfather was not
without standing to pursue the termination of Father’s parental rights to
facilitate the adoption process.
II.
Substantial Evidence Supports the Order Terminating Father’s
Parental Rights
Section 7800 et. seq. allows for a child to be declared free from a
parent’s custody and control to facilitate the child’s adoption. The purpose of
these proceedings 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.) These
statutory provisions must be “liberally construed to serve and protect the
interests and welfare of the child.” (§ 7801.)
Section 7822 provides grounds for terminating parental rights when a
parent has voluntarily abandoned a child. A “section 7822 proceeding to
terminate parental rights 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 the parent for the statutory period;
and (3) with the intent on the part of the parent to abandon the child.’ ” (In
re Aubrey T. (2020) 48 Cal.App.5th 316, 326 (Aubrey T.).) A parent’s “failure
to provide support, or failure to communicate is presumptive evidence of the
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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).)
The trial court’s findings in a proceeding brought under section 7822
must be based on a clear and convincing evidence. (Aubrey T., supra, 48
Cal.App.5th at p. 326; § 7821.) “[W]hen presented with a challenge to the
sufficiency of the evidence associated with a finding requiring clear and
convincing evidence, the [reviewing] court must determine whether the
record, viewed as a whole, contains substantial evidence from which a
reasonable trier of fact could have made the finding of high probability
demanded by this standard of proof.” (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1005.) We review the record in the light most favorable to the
trial court’s order and we do not evaluate “the credibility of witnesses, resolve
conflicts in the evidence or determine the weight of the evidence.” (In re E.M.
(2014) 228 Cal.App.4th 828, 839.) It is the appellant’s burden to show that
the evidence is insufficient to support the trial court’s findings. (Ibid.)
Father argues there was only a single 12-month period in which he
failed to communicate with and provide support for M.L., and that this
evidence does not sufficiently establish his intent to abandon her under
section 7822. In support of his argument, Father contends that he did not
leave M.L., but rather that she was “taken” by the family court order that
required Father’s visitation to be supervised. He argues M.L. was further
taken when Mother hindered Father’s visitation by rejecting his proposed
visitation monitors. We disagree with Father’s characterization of the record
and conclude substantial evidence supports the trial court’s findings that
Father left M.L. in Mother’s care for longer than the one-year statutory
period in section 7822, subdivision (a)(3).
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“In determining the threshold issue of whether a parent has
‘left’. . . [their] child, the focus of the law is ‘on the voluntary nature of a
parent’s abandonment of the parental role rather than on physical desertion
by the parent.’ [Citations.] [¶] Thus . . . a parent will not be found to have
voluntarily left a child in the care and custody of another where the child is
effectively ‘taken’ from the parent by court order [citation]; however, the
parent’s later voluntary inaction may constitute a leaving with intent to
abandon the child [citation].” (In re Marriage of Jill & Victor D. (2010) 185
Cal.App.4th 491, 504–505 (In re Marriage of Jill).) “Simply stated, ‘nonaction
of the parent after a judicial decree removing the child may convert a
[judicial] “taking” into a “leaving” [of a child by a parent].’ ” (Id. at p. 505.)
Here, Father’s actions are similar to those of the father and appellant
in In re Marriage of Jill, supra, 185 Cal.App.4th 491. In that case, the father
had no contact with his children following a 2001 family court order that
required the father to fulfill certain conditions in order to visit with the
children. (Id. at pp. 498–500.) The mother successfully filed a petition to
terminate father’s parental rights in 2008, and on appeal the father argued
there was insufficient evidence that he “left” his children within the meaning
of section 7822 because he was deprived of custody by judicial decree. (Id. at
p. 503.) The appellate court rejected his argument, identifying instances of
the father’s inaction since his last contact with the children: he stopped
seeking contact with the children; he left them in the mother’s care six
months prior to the date the final custody and visitation orders were entered;
he made no attempt to appeal the judgment and did not seek modification of
the custody and visitation order for over three years; he made no effort to
comply with the conditions that would have allowed him to have contact with
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the children; he did not seek any type of parental relationship with the
children; and he did not pay child support voluntarily. (Id. at p. 505.)
Similarly, here, Father acknowledged that the visitation orders allowed
him to have up to eight hours of supervised visitation with M.L., but he did
not fulfill the conditions that would have allowed him to have the visitation.
Although the trial court recognized Father’s efforts at obtaining an
appropriate supervised visitation monitor, the court found that Father did
not successfully obtain such a monitor, nor did he make any attempt to
modify the supervised visitation order with the family court. And since at
least 2017, Father did not make any attempt to communicate with M.L.
through phone calls, emails, or letters, despite no court-ordered restrictions
in his ability to do so. Although Father did make child support payments
until 2020, these payments were garnished from his paychecks and not
voluntarily made. Viewing this evidence in the light most favorable to the
trial court’s findings, as we must, we conclude substantial evidence supports
the trial court’s finding that Father “left” M.L. for the purposes of section
7822.
As to the remaining elements—whether Father failed to communicate
with or provide support to M.L. for one year, with the intent to abandon—we
similarly find that the trial court’s findings are supported by substantial
evidence. Abandonment and intent are questions of fact for the trial judge,
and when supported by substantial evidence the trial judge’s decision is
binding upon the reviewing court. (Allison C., supra, 164 Cal.App.4th at
p. 1011.) For the purposes of section 7822, “[t]he 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.” (Amy A., supra,
132 Cal.App.4th at p. 68.)
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Here, the trial court found that aside from the farmer’s market incident
in 2016, Father had no contact with M.L. since 2014 and had made no
attempt to contact Mother or M.L. since 2017. Mother testified that her
phone number and email address remained the same, and yet she received no
communication from Father. Father did not send M.L. cards, gifts, or
support, aside from the child support payments garnished from his wages.
Father admitted that he had not attempted to contact Mother since he moved
to Utah in 2017. Thus, Father failed to communicate with M.L. for far longer
than the one-year statutory period reflected in section 7822, subdivision
(a)(3).
As to his failure to provide financial support, Father argues, and the
trial court acknowledged, that his financial circumstances were affected in
2020 by the COVID-19 pandemic. However, Father testified that he resumed
work in May 2020 and yet did not make child support payments. Father
concedes that during the 12-month period, from August 2020 through August
2021, he did not provide child support payments for M.L. or have any form of
communication with her.
Accordingly, although we reject Father’s contention that his lack of
communication and support for M.L. was limited to the one-year period
between August 2020 and September 2021 (considering that he had not
communicated with M.L. or Mother since at least 2017), this one-year period
meets the statutory requirement under section 7822, subdivision (a)(3).
(§ 7822, subd. (a) (3) [a proceeding may be brought when “[o]ne 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 . . . .”] (italics added).) Along with Father’s failure to
communicate for over a year, the trial court’s factual finding that Father
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acted with the intent to abandon is also supported by substantial evidence,
considering the successive years of Father’s absence, his failure to
communicate with Mother or M.L., and his lack of any attempt to modify the
visitation order that he contends prohibited his ability to visit with M.L.
Accordingly, we conclude substantial evidence supports the trial court’s
finding that Father failed to provide support or communicate with M.L. for
the relevant statutory period, with the intent to abandon.
Finally, the trial court’s finding that the termination of Father’s
parental rights was in M.L.’s best interests was supported by the record.
After the trial court concluded that Father left M.L. without communication
or support for over a year, the trial court commented on the strength of the
bond between Stepfather and M.L. The court noted that M.L. was desirous of
the petition being granted and that she had previously asked to have her last
name changed to Stepfather’s name. Considering that the termination of
Father’s parental rights facilitates M.L.’s adoption by Stepfather, as well as
the substantial evidence that Father abandoned M.L. for the purposes of
section 7822, we conclude substantial evidence supports the trial court’s
finding that its order was in M.L.’s best interests.
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DISPOSITION
The order terminating Father’s parental rights pursuant to section
7822 is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DATO, J.
CASTILLO, J.
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