In re Aubrey T.

Filed 3/23/20 Modified and Certified for Publication 4/24/20 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re AUBREY T., a Person B296810
Coming Under the Juvenile Court
Law. (Los Angeles County
TAYLOR T. et al., Super. Ct. No. 17CCAB00018)
Respondents,
v.
ANTHONY N.,
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Margaret Henry, Judge. Reversed.
Pamela Rae Tripp for Appellant Anthony N.
Law Offices of Vincent W. Davis, Vincent W. Davis, and
Stephanie M. Davis for Respondents Shirley T. and Ernest T.
Taylor T., in pro. per., for Respondent Taylor T.
________________________
Anthony N., the biological father of minor Aubrey T.,
appeals from the juvenile court’s judgment granting a petition
to terminate Anthony’s paternal rights and declare Aubrey free
for adoption by her maternal great-grandparents. On appeal,
Anthony argues the evidence was insufficient to support the
juvenile court’s finding that he abandoned Aubrey within the
meaning of Family Code section 7822. Anthony also asserts the
juvenile court acted in excess of its jurisdiction by adjudicating
the petition under Family Code section 7822 when the petition
originally was filed under a different statutory provision. For
the reasons set forth below, we reverse.
FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
I. The Care and Custody of Aubrey
Anthony and Taylor T. are the biological parents of Aubrey,
a girl born in July 2011. Prior to Aubrey’s birth, Anthony and
Taylor had been in an on-again-off-again relationship for about
four years. When Taylor was four months pregnant with Aubrey,
she and Anthony began living together in Riverside; however,
Taylor moved out shortly before the birth due to problems in
their relationship. At the time of the birth, Taylor was staying
with Aubrey’s maternal great-grandparents, Shirley and Ernest
T., in Long Beach while Anthony continued to live in Riverside.
Anthony was present at Aubrey’s birth, but he was not named as
the child’s father on the birth certificate.
When Aubrey was a few weeks old, Taylor and the baby
moved in with Anthony at his home in Riverside. In February
2
2012, when Aubrey was six months old, Taylor and Anthony got
married. Over the next two and a half years, Taylor and Aubrey
continued living with Anthony, although there were periods of
time when Taylor took Aubrey with her to stay with Shirley and
Ernest because she and Anthony were having marital problems.
During the time that Taylor and Aubrey resided with Anthony,
he generally provided them with financial support and helped
Taylor with the day-to-day tasks of caring for their daughter.
According to Taylor, however, Anthony was often absent from the
home because he had a serious alcohol and drug abuse problem.
There were also occasions when Anthony committed acts of
domestic violence against Taylor.
In November 2014, when Aubrey was three years old,
Anthony and Taylor separated. Around that time, Taylor and
Aubrey moved in with Shirley and Ernest. Taylor also obtained
a temporary restraining order (TRO) against Anthony that
precluded him from having any contact with her or Aubrey. By
early 2015, the TRO had been lifted, and Taylor and Anthony
began communicating again via text and email. Taylor also
allowed Anthony to have some visits with Aubrey outside the
maternal great-grandparents’ home. Once Aubrey began living
with Shirley and Ernest in late 2014, Anthony did not have any
direct communication with them. Instead, all of Anthony’s
contact with Aubrey was facilitated by Taylor.
For a three-month period in 2015, Taylor’s whereabouts
were unknown. In November 2015, after learning from a mutual
friend that Taylor was missing, Anthony went to the maternal
great-grandparents’ home accompanied by a police officer. While
Anthony indicated that his intent in going to the home was to
visit Aubrey, Shirley and Ernest feared that Anthony was there
3
to take custody of the child. Shirley told the officer that Anthony
was not named as Aubrey’s father on her birth certificate and
that he would need to get a paternity test to prove he was her
father. Anthony left the home that day without seeing Aubrey.
II. Anthony Seeks Custody of Aubrey In Family Court
On December 15, 2015, Anthony filed a petition for
dissolution of the marriage in which he sought custody of Aubrey.
After filing the petition, Anthony and his attorney met with
Taylor to discuss issues of child custody and support. According
to Anthony, he and Taylor agreed to a 50/50 custody arrangement
for Aubrey at that meeting. Taylor, however, denied that any
such agreement was reached. On December 26, 2015, Anthony’s
attorney sent Taylor a proposed stipulated judgment regarding
the terms of the parties’ purported agreement, but did not receive
any response.
During this time period, Taylor and Anthony continued to
exchange text messages in which he repeatedly asked about
Aubrey and when he could spend time with her. He also warned
Taylor that he would be going to court if she did not sign the
paperwork from his attorney. In early 2016, Taylor told Anthony
in a series of text messages that Shirley and Ernest had “flipped
out and threatened” her when they learned Aubrey was
communicating with him. They also had expressed to Taylor
that, if she was on Anthony’s side, they would “cut [her] out of the
equation and do everything” they could to keep him away. In
response, Anthony assured Taylor that her family would not be
able to say anything once they “were done with [the] paperwork.”
In January 2016, Taylor and Anthony briefly resumed their
sexual relationship. However, when Taylor discovered that
4
Anthony was seeing another woman at the same time, their
relationship rapidly deteriorated. Shortly after this discovery,
Taylor ceased all communication with Anthony and refused to
respond to any of his text messages about Aubrey. On June 7,
2016, Anthony filed a request to enter a default judgment in the
marital dissolution action. After receiving notice of the request,
Taylor retained an attorney to represent her in the case. The
parties then filed a stipulation to set aside the request for a
default. On August 31, 2016, Taylor filed a response to the
petition in which she requested sole legal and physical custody of
Aubrey with supervised visitation for Anthony. The parties were
ordered to attend a mediation on September 2, 2016 to address
child custody and visitation, but Taylor did not appear.
On September 7, 2016, Anthony filed a request for an order
to establish his paternity and for joint legal and physical custody
of Aubrey. Taylor opposed the request. In a declaration signed
on October 3, 2016, Taylor stated that Anthony had not provided
any financial support for Aubrey or made any serious attempts to
visit the child for the past two years.
III. The Maternal Great-Grandparents Seek
Guardianship of Aubrey In Probate Court
On July 18, 2016, while the marital dissolution action was
pending in family court, Shirley and Ernest filed a petition to be
appointed the guardians of Aubrey in probate court. The petition
alleged that Anthony had a history of domestic violence and drug
and alcohol abuse, and that he had threatened to harm both
Taylor and Aubrey if Taylor took any legal action against him. It
also alleged that Aubrey used to spend weeks under the maternal
great-grandparents’ care while Anthony and Taylor were dealing
5
with marital issues, and that Aubrey had been in their custody
on a full-time basis since about October 2014. The petition was
accompanied by a written consent to the proposed guardianship
signed by Taylor. On September 14, 2006, Shirley and Ernest
also filed an ex parte application for temporary guardianship of
Aubrey on the ground that Anthony had not made any attempt to
visit the child or to financially support her for the past two years.
Anthony objected to the petition and ex parte application,
and requested that the action be transferred to the family court
to decide all issues related to the custody of Aubrey. On
September 14, 2016, the probate court denied the ex parte
application and ordered the matter suspended pending the family
law proceeding.
IV. The Parties Return To Family Court For
Adjudication Of Custody And Visitation
On October 6, 2016, Shirley and Ernest filed a motion to
join the family law proceeding. They also filed a request for an
order declaring them to be Aubrey’s de facto parents, and Ernest
to be the child’s presumed father. In addition, Shirley and Ernest
asked the family court to grant them sole legal and physical
custody of Aubrey.
On February 7, 2017, the family court held a hearing on
Anthony’s request for an order for joint legal and physical
custody. At the hearing, the court ordered the parties to meet
and confer about a possible step-up proposal for custody and
visitation. Although Anthony’s counsel repeatedly attempted to
schedule the meet-and-confer conference, Taylor’s counsel failed
to timely respond. On February 28, 2017, paternity test results
confirmed that Anthony was Aubrey’s biological father. On
6
April 21, 2017, Anthony filed an ex parte application seeking
temporary physical custody of Aubrey pending resolution of a
step-up schedule. Anthony also requested the appointment of
minor’s counsel for Aubrey given the highly contested nature of
the custody and visitation issues.
V. Taylor Files A Petition To Terminate Anthony’s
Parental Rights In Juvenile Court
On April 21, 2017, the same day that Anthony filed his ex
parte request for temporary custody of Aubrey in family court,
Taylor filed a petition to determine Anthony’s parental rights
1
pursuant to Family Code section 7662 in juvenile court. Among
other allegations, the petition asserted that Taylor and Anthony
did not attempt to marry each other before or after Aubrey’s
birth; that Anthony did not openly hold out Aubrey as his child
and receive her into his home; and that Anthony failed to provide
any child support for Aubrey and to communicate with her. The
petition sought to terminate Anthony’s parental rights so that
Aubrey could be free for adoption by Shirley and Ernest. Taylor
also concurrently filed a motion to stay the family law proceeding
pending adjudication of the petition.
At a hearing held on April 21, 2017, the family court denied
Anthony’s ex parte application on the ground that the pending
requests for custody and visitation had to be stayed until the
juvenile court ruled on the petition to terminate parental rights.
Anthony’s counsel expressed concern that Taylor and the
maternal great-grandparents were engaging in delay tactics to
1
Unless otherwise stated, all further statutory references
are to the Family Code.
7
prevent Anthony from having any contact with his child. In
response, the family court stated: “I’m not going to make a
judgment today, obviously, about whether Respondent has
engaged in gamesmanship, but I will say this, as a general
principle, if the court ultimately finds that Respondent has
engaged in gamesmanship in the litigation process, that will be a
very important factor in determining how we go forward, if and
when this court ever regains jurisdiction. The optics are bad . . .
for Respondent, that there’s been so many attempts here to go to
different courts, to basically prohibit Petitioner from having any
relationship with the child. . . . To terminate somebody’s parental
rights is not an easy thing to do. It’s a steep hill to climb. . . . So
Respondent has to think very carefully about this.”
VI. The Juvenile Court Conducts A Contested Hearing
On The Petition To Terminate Parental Rights
Starting in October 2018, the juvenile court held a seven-
day hearing on Taylor’s petition to terminate Anthony’s parental
rights and free Aubrey for adoption by Shirley and Ernest.
Taylor, Shirley, and Taylor’s stepfather, David F., testified
on Taylor’s behalf. They generally recounted that Anthony had a
history of alcohol and drug abuse during his relationship with
Taylor and following their separation. Taylor stated that, during
the time that Aubrey lived with them, Anthony drank alcohol
on a daily basis and was often intoxicated at night and on the
weekends. Anthony also used cocaine, had introduced Taylor to
the drug, and had been a dealer of both cocaine and ecstasy.
Although Taylor repeatedly tried to convince Anthony to enter
a drug rehabilitation program, he refused. In addition, Taylor
8
described a series of incidents between 2009 and 2013 where
Anthony was physically abusive toward her.
Shirley testified that Aubrey had been living with her and
Ernest since October 2014 and was thriving in their care. They
financially supported her, were actively involved in her education
and extracurricular activities, and were able to meet all of her
day-to-day needs. Shirley also testified that, after Aubrey began
residing with them, the only time Anthony attempted to have
contact with the child was in November 2015 when he came to
their home with a police officer. Anthony did not otherwise reach
out to the maternal great-grandparents about Aubrey or ask if he
could see her. Anthony also did not provide any financial support
for Aubrey at any time from October 2014 to May 2018. Taylor
acknowledged that she received text messages from Anthony in
which he asked to visit Aubrey, but she described those messages
as sporadic in nature. Taylor also testified that there were times
when she allowed Anthony to have visits with Aubrey. On other
occasions, however, Taylor refused to let Anthony see their
daughter because he was intoxicated or had missed a prior
scheduled visit.
Anthony testified on his own behalf. He admitted that he
had a history of drug and alcohol abuse, and had prior arrests for
drug-related offenses. He maintained, however, that he had been
sober since September 2013 and had completed a court-ordered
18-month drug and alcohol program in March 2016. Anthony
denied that he ever sold drugs. He also denied that he had
engaged in any acts of domestic violence against Taylor. Anthony
testified that he was gainfully employed, and was living in Long
Beach with his girlfriend and her school-age daughter.
9
Anthony further testified that, after the TRO was lifted in
January 2015, he attempted to visit Aubrey. Anthony regularly
sent Taylor email and text messages about seeing Aubrey, but
Taylor was not always responsive to these requests. Taylor did,
however, allow Anthony to have visits with Aubrey on about 10
occasions in 2015. The situation changed, however, in January
2016 when Taylor learned of Anthony’s involvement with another
woman and stopped communicating with him altogether. At that
point, Anthony decided to pursue custody and visitation solely
through the court system. Anthony stated that he did not contact
Shirley and Ernest about visiting Aubrey because he believed
that he and Taylor should communicate directly about their
child. Taylor also had told Anthony that Shirley and Ernest did
not approve of him having any relationship with her or Aubrey.
Two experts also testified at the hearing. Dr. Nancy Kaser-
Boyd prepared a child custody evaluation report pursuant to
Evidence Code section 730. She testified that she found Taylor’s
description of Anthony’s prior drug and alcohol use and domestic
violence to be credible. She further opined that Aubrey was safe
and happy in the care of Shirley and Ernest, and that adoption
would provide the child with continued stability and security.
Dr. Kaser-Boyd recommended that any visitation with Anthony
or Taylor be monitored. She also recommended drug and alcohol
testing for Anthony and individual therapy for Taylor. Dr.
Alfredo Crespo was retained by Anthony to conduct an
independent psychological evaluation. Dr. Crespo opined that
Anthony was available to be a valuable social capital resource to
Aubrey. Dr. Crespo based his opinion on the fact that Anthony
had been sober for a number of years, was steadily employed, was
10
in a healthy relationship with his current girlfriend, and had
emotional and financial support from his family.
VII. The Juvenile Court Terminates Anthony’s Parental
Rights Over Aubrey Based On Abandonment
On December 17, 2018, the juvenile court issued a
statement of decision and judgment granting the petition to
terminate Anthony’s paternal rights over Aubrey and declaring
her free from the custody and control of her parents. The court
based its decision to terminate parental rights on its conclusion
that it had been proven by clear and convincing evidence that
Anthony had abandoned Aubrey within the meaning of section
7822. With respect to Anthony’s credibility, the court found that
Anthony repeatedly had lied in his testimony, including when he
stated that he had been sober since 2013 and denied that he had
committed domestic violence against Taylor. The court also
explained that it could not rely on the testimony of Anthony’s
expert, Dr. Crespo, because his opinions were based on his
interview with Anthony, and the court found that Anthony had
“lied in that interview just as he did in court.”
With respect to Anthony’s abandonment of Aubrey, the
court focused its decision on the period of time between
November 2014 and November 2015. The court noted that
Anthony knew that Aubrey was living with Shirley and Ernest
following his separation from Taylor, but made no attempt to
contact them to arrange a visit with Aubrey or to offer them any
financial support. The court also noted that the only contact that
Anthony had with Aubrey during this period was when Taylor
arranged it for him, and that Taylor credibly testified that
Anthony had about five visits with Aubrey for a few hours at a
11
time. The court found that these 2015 visits with Aubrey were
token communications that were insufficient to overcome the
presumption of an intent to abandon the child. The court also
concluded that the termination of Anthony’s parental rights and
adoption of Aubrey by her maternal great-grandparents were in
the child’s best interest. The court noted that Shirley and Ernest
were the people that Aubrey recognized as her parents, whereas
Aubrey had not seen Anthony at all in the past three years and
had little recollection of him.
DISCUSSION
On appeal, Anthony challenges the juvenile court’s
judgment granting the petition to terminate his parental rights
over Aubrey. Anthony asserts that there was no substantial
evidence to support the court’s finding that he abandoned Aubrey
within the meaning of section 7822. He also argues that the
court acted in excess of its jurisdiction in adjudicating the
petition under section 7822, which allows for the termination of
parental rights based on abandonment, even though the petition
was filed under section 7662, which governs the termination of
parental rights of non-presumed fathers in a proposed adoption.
I. Governing Legal Principles
The Uniform Parentage Act (UPA) (§ 7600 et seq.) “creates
three classes of parents: mothers, fathers who are presumed
fathers, and fathers who are not presumed fathers.” (Adoption
of Michael H. (1995) 10 Cal.4th 1043, 1051.) “If a man is a
presumed father, a third party generally cannot adopt his child
unless both he and the mother consent. (§ 8604-8606.) If a
man is not a presumed father, however, the situation is quite
12
different. The mother’s consent is still required in most cases
[citation], but the father’s consent is not required unless he
successfully petitions to block the adoption and establish his legal
status as the child’s father. (§ 7630, 7662.) Even if he files such
a petition, the adoption will proceed over his objection if either
the mother or the party seeking to adopt the child successfully
petitions for termination of his parental status. (§ 7662.) If the
court finds in such a proceeding that . . . that it is in the best
interest of the child to be adopted by the prospective adoptive
parents, it must enter an order stating that the father’s consent
is not required. [Citation.] This order also ‘terminates all [the
father’s] parental rights and responsibilities with respect to the
child.’ [Citation.]” (Adoption of Michael H., supra, at p. 1051; see
also Adoption of Alexander M. (2001) 94 Cal.App.4th 430, 438.)
Section 7822 provides a separate and distinct mechanism
for terminating parental rights based on a parent’s voluntary
abandonment of a child. It provides that abandonment occurs if
“[t]he child has been left by both parents . . . in the care and
custody of another person for a period of six months,” or by one
parent “in the care and custody of the other parent for a period
of one year, without any provision for the child’s support, or
without communication from the parent, with the intent on the
part of the parent to abandon the child.” (§ 7822, subd. (a).) “The
failure to provide identification, failure to provide support, or
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).) Once the
requisite finding of abandonment has been made, the court
may enter an order declaring the child free from the parent’s
13
custody and control, which terminates all parental rights and
responsibilities with respect to the child. (§§ 7802, 7803, 7820.)
Accordingly, 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 E.M. (2014) 228 Cal.App.4th
828, 838-839; see also In re H.D. (2019) 35 Cal.App.5th 42, 50.) A
trial court’s finding of abandonment must “be supported by clear
and convincing evidence.” (§ 7821.) On appeal, the reviewing
court examines the entire record to determine whether there
is substantial evidence to support the trial court’s findings.
(Adoption of A.B. (2016) 2 Cal.App.5th 912, 922; Adoption of
2
Allison C. (2008) 164 Cal.App.4th 1004, 1010.)
II. The Evidence Was Insufficient To Support The
Juvenile Court’s Finding Of Abandonment
In granting the petition to terminate Anthony’s parental
rights over Aubrey, the juvenile court found that there was clear
2
The California Supreme Court has granted review in
Conservatorship of O.B. (May 1, 2019, S254938), limited to the
following question: “On appellate review in a conservatorship
proceeding of a trial court order that must be based on clear and
convincing evidence, is the reviewing court simply required to
find substantial evidence to support the trial court’s order or
must it find substantial evidence from which the trial court could
have made the necessary findings based on clear and convincing
evidence?” We conclude that, under either standard of review,
the evidence in this case was insufficient.
14
and convincing evidence that Anthony abandoned Aubrey within
the meaning of section 7822. The court specifically found that,
between November 2014 and November 2015, Anthony left
Aubrey in the care of her maternal great-grandparents without
any provision for support or any communication. The court also
found that Anthony’s failure to provide support or communication
was presumptive evidence of his intent to abandon his child, and
that Anthony’s minimal visitation with Aubrey was insufficient
to overcome that presumption. Based on our review of the record,
however, we conclude the juvenile court’s finding that Anthony
abandoned Aubrey was not supported by substantial evidence.
The presumption provided by section 7822 affects the
burden of producing evidence, not the burden of proof. (In re
Rose G. (1976) 57 Cal.App.3d 406, 419-420 [interpreting same
language in section 7822’s predecessor statute].) “The effect of
such a presumption is that when the party against whom such
a presumption operates produces some quantum of evidence
casting doubt on the truth of the presumed fact, the other party
is no longer aided by the presumption. The presumption
disappears, leaving it to the party in whose favor it initially
worked to prove the fact in question.’ [Citation.]” (St. John of
God Retirement & Care Center v. State Dept. of Health Care
Services (2016) 2 Cal.App.5th 638, 657; see also Evid. Code,
§ 604.) Accordingly, when a party challenging the existence of
section 7822’s presumption of an intent to abandon presents
evidence of its non-existence, the presumption disappears and
the court must find the requisite intent “without regard to the
presumption” and “with no change in the allocation in the burden
of proof.” (In re Rose G., supra, at p. 424.)
15
An intent to abandon is “a separate required element under
section 7822.” (In re Amy A. (2005) 132 Cal.App.4th 63, 71.)
“While a parent need not intend to abandon their child
permanently for the court to employ the ‘“drastic remedy”’ of
terminating their parental rights under section 7822 . . ., they
must intend to abandon their child for [the relevant statutory
period]. [Citations.]” (In re H.D., supra, 35 Cal.App.5th at p. 52.)
“‘“[The] question whether [an] 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.”’ [Citation.]” (In re E.M., supra, 228
Cal.App.4th at p. 839.) In making this determination, the court
“must objectively measure the parent’s conduct, ‘consider[ing]
not only the number and frequency of his or her efforts to
communicate with the child, but the genuineness of’ the parent’s
efforts.” (Adoption of A.B., supra, 2 Cal.App.5th at p. 923.)
In this case, the record reflects that Aubrey began residing
with her maternal great-grandparents on a full-time basis in
or about November 2014. At that time, Anthony and Taylor
separated due to marital problems, and Taylor took Aubrey with
her to the home of Shirley and Ernest. Taylor also obtained a
temporary restraining order against Anthony that precluded him
from having any contact with her or Aubrey, which remained in
effect until January 2015. The first time that Anthony sought
a court order for custody or visitation was in December 2015
when he filed a petition for dissolution of the marriage. It is
undisputed that, between November 2014 and November 2015,
Anthony was aware that Aubrey was residing in the home of
Shirley and Ernest. It is also undisputed that, during this one-
year period, Anthony did not provide Aubrey with any financial
16
support, thus constituting presumptive evidence of an intent to
abandon her under section 7822. The question is whether there
was substantial evidence to support the juvenile’s court’s finding
that Anthony failed to overcome that presumption.
At the contested hearing on Taylor’s petition to terminate
his parental rights, Anthony testified that, once the restraining
order was lifted in January 2015, he began communicating with
Taylor on a regular basis about visiting Aubrey. Anthony further
testified that, between January and June 2015, he and Aubrey
had approximately 10 in-person visits with Taylor’s consent. To
corroborate his testimony, Anthony presented photographs from
this time period, which showed him spending time with Aubrey.
He also provided email and text messages that he exchanged
with Taylor in which he asked about having additional visits.
In mid-2015, Taylor ceased communicating with Anthony for a
period of time, and her whereabouts were unknown. Anthony
testified that, when he learned in November 2015 that Taylor
was missing, he went to the home of Shirley and Ernest to check
on Aubrey, but they refused to let him see her.
Anthony thus presented evidence that he did not intend
to abandon Aubrey in 2015. By producing such evidence,
Anthony rebutted section 7822’s presumption, which in turn
required the juvenile court to find that he had an intent to
abandon without regard to the presumption and without
reallocating the burden of proof. In terminating Anthony’s
parental rights, however, the court continued to rely on the
presumption, finding that Anthony’s visits with Aubrey in
2015 were not sufficient “to overcome the presumption of intent
to abandon.” Because the presumption disappeared when
Anthony met his burden of production, the court erred in making
17
this finding. Furthermore, while the failure to support or
communicate with a child is presumptive evidence of an intent to
abandon, that evidence, standing alone, is insufficient to prove
intent once the presumption no longer applies. Therefore, once
Anthony rebutted the presumption, the juvenile court could
not rely solely on evidence of Anthony’s failure to support or
communicate with Aubrey to find that he intended to abandon
her. Instead, there had to be some other evidence from which
the court reasonably could infer that Anthony acted with the
requisite intent. The record does not contain such evidence.
In finding that Anthony intended to abandon Aubrey
within the meaning of section 7822, the juvenile court noted that
he “never attempted to visit by contacting Shirley and Ernest.”
Anthony testified, however, that he “did not feel comfortable in
reaching out to them directly,” and that he believed he should
communicate with Taylor about visitation because they “are the
parents of Aubrey.” Anthony also testified that Taylor had told
him that Shirley and Ernest did not approve of Anthony having a
relationship with Aubrey, and that she feared they “would cut
her off” if she allowed him to visit. This testimony was consistent
with Taylor’s text messages to Anthony in which she conveyed
that her grandparents were threatening to “cut [her] out of the
equation and do everything” they could to keep Anthony away
after they discovered that Taylor was talking to him. In her
testimony, Shirley admitted that she felt Aubrey should not have
any contact with Anthony, and that Taylor “should just cut him
out one hundred percent.” Shirley also acknowledged that she
had expressed this opinion to Taylor at a time when Taylor was
residing in her home and relying on Shirley and Ernest for
financial support. On this record, Anthony’s failure to reach out
18
to Shirley and Ernest directly about visiting Aubrey did not
demonstrate an intent to abandon the child.
While it is undisputed that Anthony directly communicated
with Taylor about Aubrey and that she allowed him to have some
visitation with the child, the juvenile court found that these visits
were mere “token communications” that did not overcome the
presumption of an intent to abandon. In making this finding, the
court rejected Anthony’s testimony that he had 10 visits with
Aubrey between January and June 2015. The court instead
credited Taylor’s testimony that it was “a little bit less” than the
number claimed by Anthony, and that there were “maybe five”
visits for a “couple of hours” at a time. For purposes of rebutting
section 7822’s presumption, Anthony’s testimony about the visits
was sufficient to satisfy his burden of producing evidence that he
did not intend to abandon Aubrey. Once the presumption no
longer applied, it was the role of the juvenile court to evaluate the
credibility of the witnesses and to resolve any conflicts in the
evidence in determining whether the requisite intent to abandon
had been shown. However, as the moving party, Taylor still bore
the burden of proof, and merely demonstrating that Anthony’s
testimony lacked credibility did not prove that he intended to
abandon their child.
Moreover, even accepting Taylor’s account of the number
and length of the visits, the uncontroverted evidence at the
hearing established that the visits agreed to by Taylor were not
the only efforts that Anthony made to communicate with Aubrey
during the relevant time period. It is undisputed that Anthony
also exchanged emails and text messages with Taylor in which he
inquired about Aubrey and asked when he could see or talk to
her. It is also undisputed that Taylor decided whether to permit
19
any contact with Aubrey during this period, and that there were
times when she refused Anthony’s requests for a visit or simply
failed to respond. For instance, in a June 2015 email, Anthony
told Taylor that he had “been texting you for a few weeks [now]
asking about [A]ubrey,” and that “what you’re doing keeping
[A]ubrey from me isn’t right.” The following month, Anthony
again emailed Taylor to complain that she had blocked his
telephone number and to ask when he was going to see Aubrey.
In her testimony, Taylor admitted that Anthony “definitely would
ask” for Aubrey at times after they separated, and that in
deciding whether to allow him to have contact with the child,
“drugs and alcohol were always the issue.” While Taylor clearly
had reason to be concerned about Anthony’s drug and alcohol use,
her decision to restrict his communication with Aubrey did not
show that Anthony himself acted with an intent to abandon
the child. (See In re H.D., supra, 35 Cal.App.5th at pp. 52-53
[“[w]hile we do not fault father for trying to protect what he saw
as his daughters’ best interests, it would be unfair to treat his
decision to prevent contact as evidence that mother did not care
to talk to her daughters” and thus intended to abandon them].)
“Section 7822 is clear—termination of parental rights is
unwarranted if the failure to communicate or provide financial
support is not accompanied by an intent to abandon. [Citations]”
(In re H.D., supra, 35 Cal.App.5th at p. 53.) Here, the juvenile
court relied on Anthony’s limited visitation with Aubrey between
November 2014 and November 2015 in finding that he failed to
overcome the presumption that he intended to abandon his child.
However, Anthony rebutted that presumption with his testimony
and documentary evidence showing that he visited Aubrey when
permitted by Taylor. Additionally, the number and length of
20
Anthony’s visits with the child told only a part of the story. The
undisputed evidence at the hearing demonstrated that Anthony
repeatedly made efforts to communicate with Aubrey during
this time period, that he had a legitimate reason for trying to
establish such contact through Taylor rather than Shirley and
Ernest, and that Taylor feared she would lose the support of her
family if she allowed Anthony to have a relationship with his
child. Based on the totality of this record, the evidence did not
support the juvenile court’s finding that Anthony’s efforts to have
contact with Aubrey were mere token communications that did
not overcome the statutory presumption. Because there was no
substantial evidence that Anthony intended to abandon Aubrey
during the period from November 2014 to November 2015, the
juvenile court erred in terminating his parental rights based on
3
abandonment under section 7822.
3
In light of our conclusion that the juvenile court’s finding
of abandonment was not supported by substantial evidence, we
need not address Anthony’s alternative argument that the court
exceeded its jurisdiction by adjudicating the petition to terminate
parental rights under section 7822 rather than section 7662. We
also need not address respondents’ argument that, to the extent
the court should have decided the petition under section 7662,
Anthony failed comply with the requirements of that statute by
timely filing an action to establish that he was the presumed
father of Aubrey. The record is clear that, by the time the
juvenile court held the contested hearing on the petition, the
dispositive issue was whether Anthony’s parental rights should
be terminated based on abandonment under section 7822, not
whether he was a presumed father whose consent to adoption
would be required under section 7662.
21
DISPOSITION
The judgment terminating Anthony’s parental rights over
Aubrey and declaring the child free from the custody and control
of her parents is reversed.
ZELON, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
22
Filed 04/24/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re AUBREY T., a Person Coming B296810
Under the Juvenile Court Law.
TAYLOR T. et al., (Los Angeles County
Super. Ct. No. 17CCAB00018)
Respondents,
ORDER MODIFYING OPINION
v. AND CERTIFYING
FOR PUBLICATION
ANTHONY N.,
Appellant.
THE COURT:
The opinion in this case filed March 23, 2020 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request by attorney
for Appellant, Anthony N., pursuant to California Rules of Court, rule
8.1120(a) for publication is granted.
The opinion is modified to include L. Ernestine Fields as attorney for
Minor.
_______________________________________________________________________
PERLUSS, P. J., ZELON, J., SEGAL, J.