Adoption of K.T. CA3

Filed 6/30/22 Adoption of K.T. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
Adoption of K. T., a Minor. C095847
M. B., (Super. Ct. No. 21CVSA6630)
Plaintiff and Respondent,
v.
K. T.,
Defendant and Appellant.
M. B. (respondent) filed a petition seeking to have his stepson K. T., declared free
from parental custody of K. T.’s biological father (appellant) under Family Code1
section 7822. The court granted the petition. Appellant appeals, contending insufficient
evidence supports the court’s findings. We affirm.
1 Undesignated section references are to the Family Code.
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BACKGROUND
K. T.’s mother (mother) met appellant when she was 17 years old; they began
dating. In 2013, mother learned she was pregnant with K. T. Mother was still living with
her own parents and when they learned about the pregnancy, mother’s parents were “very
upset” with her. Mother and appellant thus decided to live with appellant’s mother,
“Lynn.”
K. T. was born in 2014. Mother and appellant were never married but appellant’s
name is listed on the birth certificate. Following K. T.’s birth, appellant never executed a
voluntary declaration of paternity and the court never issued an order establishing
paternity.
In 2015, after realizing the extent of appellant’s heroin addiction, mother moved
out of Lynn’s home and moved back in with her parents; she took K. T. with her. Lynn
also moved out but appellant remained in their mobile home as a squatter until he was
evicted. Over the next two years, appellant would contact mother, often for money.
When mother refused to give appellant money, he would ask to see K. T.; ultimately,
those visits were usually a “last ditch effort to get money from [mother].” Appellant saw
K. T. in January 2017, just before K. T. turned three. Appellant has not seen K. T. since.
After K. T. turned three, mother would hear from appellant about once a year.
Appellant would call her from a “burner phone” or she would get a message through
Facebook. When he did reach out, appellant was “sober and in jail or coming off a high
somewhere on the streets.” If he was in jail, appellant would ask mother if he could see
K. T. when he got out of jail. If appellant was not in jail, he would ask to meet mother so
she could give him money.
In March 2017, mother met respondent. They began dating, and in September
2017, mother and K. T. moved in with respondent. Two years later, mother and
respondent began looking into respondent adopting K. T. Mother and respondent
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intended to marry, but were in no hurry (they ultimately became engaged in December
2020 and married in May 2021).
On March 15, 2020, appellant entered a rehabilitation program for drugs and
alcohol. While he was in the program, appellant sent mother a letter apologizing for his
conduct, he was “hoping to do better.” He also told mother he was moving to
Washington for work. Appellant said he “met a girl.” He also hoped K. T. was well and
told mother he “wanted to see him someday.” For Christmas in 2020, appellant sent a
card to mother, respondent, and K. T., wishing them well. He also sent K. T. a stuffed
bear.
At the beginning of 2021, mother spoke to appellant for the first time since 2017.
She asked appellant if he would “sign over adoption papers.” Appellant refused. A few
months later, on March 18, 2021, appellant graduated from his rehabilitation program; he
made no effort to see K. T.
On June 9, 2021, respondent filed a petition to declare K. T. free from appellant’s
parental control and custody so that respondent could adopt him. In support of his
petition, respondent argued appellant had abandoned K. T. “into the care of his mother”
for more than one year. Appellant opposed the petition; the court appointed counsel and
an investigator for appellant to make a recommendation on the petition.
Following her investigation, the court appointed investigator recommended the
petition to declare K. T. free from appellant’s parental control and custody be granted. In
support of her recommendation, the investigator noted that K. T. (then seven years old)
“only knows” respondent as his father. She acknowledged appellant’s sober date in
March 2020, and congratulated his efforts to “better his life,” however, she found
appellant had not seen K. T. in “over three years.” Three years, she concluded, “was a
sufficient amount of time for [appellant] to make the changes he needed to make to be an
active parent in [K. T.]’s life.”
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On October 29, 2021, the trial court heard respondent’s petition. Appellant
testified he had been using drugs since high school and it was not until March 2020, that
he found the resolve to get clean. He acknowledged he had not seen K. T. in “over three
years.” He also admitted that he made no attempt to see K. T. until March 2021, when he
reached out to mother and respondent after he graduated from the program and told them
he was “getting [his] life together.”
According to appellant, he never intended to abandon K. T. Appellant’s addiction
prevented him from “really participating in [K. T.]’s life,” and it also prevented him from
supporting K. T. financially. At the time of the hearing, appellant had been clean and
sober for 19 months. He had been able to hold down a full-time job since he graduated
from the program; he completed “DUI school” and had his driver’s license reinstated; he
was engaged to be married; and his fiancée was pregnant. Appellant thought it would
benefit K. T. to have “two father figures in his life.”
After issuing a tentative decision on December 28, 2021, on January 19, 2022, the
court entered judgment declaring K. T. free from appellant’s parental control and
custody. The court found clear and convincing evidence that appellant left K. T. in the
custody and care of mother “for a period of over one year without any provision for the
child’s support, with the intent to abandon the child.” The court also found K. T.
adoptable and the judgment to be in his best interests.
Appellant timely appealed.
DISCUSSION
A
Legal Principles
Section 7800 et seq. governs proceedings to have a minor child declared free from
a parent’s custody and control. (§ 7802; Adoption of Allison C. (2008) 164 Cal.App.4th
1004, 1009 (Allison C.).) “A declaration of freedom from parental custody and control
. . . terminates all parental rights and responsibilities with regard to the child.” (§ 7803.)
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A court may declare a child free from parental custody and control if the parent
has abandoned the child. (§ 7822; Allison C., supra, 164 Cal.App.4th at p. 1010.)
Abandonment may occur 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, with the intent on the part of the parent to
abandon the child.” (§ 7822, subd. (a)(3).) “ ‘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 . . . .’ ” (§ 7822, subd. (b).) “The parent
need not intend to abandon the child permanently; rather, it is sufficient that the parent
had the intent to abandon the child during the statutory period.” (In re Amy A. (2005) 132
Cal.App.4th 63, 68.)
We review the family court’s findings under section 7822 for substantial evidence,
bearing in mind the clear and convincing standard of proof. (Conservatorship of O.B.
(2020) 9 Cal.5th 989, 1011.) “ ‘An appellate court is not empowered to disturb a decree
adjudging that a minor is an abandoned child if the evidence is legally sufficient to
support the finding of fact as to the abandonment.’ ” (In re Brittany H. (1988) 198
Cal.App.3d 533, 549.) Abandonment and intent are questions of fact for the trial judge
and the trial judge’s decision when supported by substantial evidence is binding upon the
reviewing court. (Allison C., supra, 164 Cal.App.4th at p. 1011.) “In determining if
substantial evidence exists, we consider the evidence in a manner that favors the order
being challenged.” (Adoption of A.B. (2016) 2 Cal.App.5th 912, 922.) 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.) On appeal, the
appellant bears the burden of establishing insufficient evidence to support the trial court’s
findings. (Ibid.)
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B
Appellant Abandoned The Child
Appellant concedes he left K. T. with mother for the statutory period, but argues
there is insufficient evidence he intended to abandon him. Specifically, he argues it was
not his choice to leave K. T. It was his drug addiction that isolated him from K. T. and
prevented him from providing support. Appellant relies on the decision in In re H.D.
(2019) 35 Cal.App.5th 42, to support his argument. We are not persuaded.
In H.D., the respondent father (father) went to court ex parte to obtain custody
based on the appellant mother’s (mother) “active alcohol and methamphetamine
addictions.” (In re H.D., supra, 35 Cal.App.5th at p. 51.) The mother admitted that a
few months prior to the respondent’s request, she stopped trying to contact the children
because the father was not allowing contact due to her addictions. She instead decided to
focus on getting healthy and fighting for custody in family court. (Id. at p. 46.) The
mother agreed to the custody order and to seek treatment for her addictions. She
thereafter immediately sought treatment, got sober, and returned to court for modification
of the custody order. (Ibid.) The mother failed to communicate or support her daughters
for the statutory period while she was in treatment and working on her sobriety. (Id. at
p. 52.) She testified she let the father assume custody “only for so long as it took her to
treat her addictions and return to family court to seek modification of the custody
arrangement.” (Ibid.) Several family members corroborated this testimony. (Ibid.) The
trial court found the mother had abandoned her children, relying solely on the
presumption. (Id. at p. 53.)
The appellate court in H.D. reversed, finding the court erred by relying on the
presumption and “ignor[ing] the overwhelming undisputed evidence [the] mother
actually never intended to abandon her daughters and was actively working to reunite
with them.” (In re H.D., supra, 35 Cal.App.5th at p. 53.) The appellate court noted the
“weightiest evidence of intent . . . was [the] mother’s] actions[, as a]fter becoming and
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remaining sober, [the] mother wasted no time in returning to family court and seeking to
regain custody.” (Id. at p. 52.) The facts here are quite different.
Appellant has made no genuine effort to communicate or reunite with K. T. since
mother left appellant in 2015, taking K. T. with her. At that time, appellant was in the
grip of his heroin addiction, but he waited five years to seek treatment. He made token
efforts to see K. T. between 2015 and 2017, but even those efforts appear to have been
for the sole purpose of getting money from mother. After 2017, appellant stopped
making even token efforts to see or reach out to K. T. until Christmas 2020, when he sent
a card and a stuffed bear.
By the time of the hearing on respondent’s petition, appellant had been clean and
sober for 19 months. He had graduated from rehabilitation; obtained (and maintained)
full-time employment; earned his driver’s license back; become engaged; and had
another child on the way. Yet, in those 19 months, he made no effort to see,
communicate with, or offer support for K. T. So, by the time of the hearing, appellant
had not seen or spoken to K. T. in over four years.
In short, appellant is not, as he argues, similarly situated to the mother in H.D. He
has not demonstrated any meaningful effort to contact or visit K. T. either before, during,
or after treating his addiction. He did not demonstrate “diligence in treating [his]
addiction[],” and he made no effort to obtain custody or visitation in family court after he
completed his rehabilitation. (See In re H.D., supra, 35 Cal.App.5th at p. 53.)
Moreover, appellant never offered to support K. T. in any way, no matter how
small, even after he was working a full-time job. Appellant argues that mother’s failure
to ask for support mitigates his failure to support K. T. Appellant cites no authority to
support that argument. Indeed, we can think of no reasoned legal theory or policy
supporting a claim that would allow appellant to minimize abandoning his child by
blaming mother for failing to ask him for help. We thus find sufficient evidence supports
the trial court’s finding of abandonment.
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DISPOSITION
The judgment freeing K. T. from appellant’s parental custody and control is
affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Renner, J.
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