In re Tristan G. CA5

Filed 8/18/23 In re Tristan G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re TRISTAN G., a Person Coming Under the
Juvenile Court Law.
SERGIO M., F085911
Petitioner and Respondent, (Super. Ct. No. BAT-21-003073)
v.
OPINION
K.G.,
Objector and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Valerie N. Lankford, under appointment by the Court of Appeal, for Objector and
Appellant.
Jeremy D. Swanson for Petitioner and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Franson, J. and Smith, J.
Appellant K.G. (mother) appeals from the trial court’s judgment terminating her
parental rights to her son Tristan G. (born October 2014) due to abandonment pursuant to
Family Code section 7822.1 From approximately January 2018 to July 2021, mother
made no attempt to set up professionally supervised visitation as required by the custodial
order between her and Sergio M. (father), but did send father text messages requesting to
see Tristan and sent a few gifts throughout the years. Father obtained a judgment freeing
Tristan from mother’s parental custody and control after the court found that mother’s
texts and gifts were merely token efforts to communicate. On appeal, mother argues
there was insufficient evidence to prove she “left” Tristan in father’s care and custody, or
intended to abandon him within the meaning of section 7822. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Father’s Petition and Mother’s Response
Mother and father are the unmarried parents of Tristan. In October 2021, father
filed a “Petition to Declare Minor Free From Parental Custody and Control” pursuant to
section 7822. In his petition, he declared he had sole legal and physical custody of
Tristan and that, although mother had supervised visitation rights, she had not attempted
to communicate with or visit Tristan for more than one year. He said mother had not
seen Tristan since January 20182 and had not provided financial assistance for his care.
In response, the trial court issued a citation to be served on mother and set a hearing on
father’s petition.
Mother filed a response denying the allegations. She stated she tried to
communicate and have visits with Tristan, and sent presents to Tristan on his birthday
and Christmas. She attached a copy of an order confirmation for a gift she sent to
1 All further statutory references are to the Family Code.
2 Mother testified she had not seen Tristan since December 2017.
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paternal grandmother’s address. Additionally, she attached copies of numerous text
messages she sent father in 2020 and 2021.
Family Court Services Investigator’s Report
Family Court Services Officer Sharon Sutherland conducted the trial court’s
investigation. Tristan was interviewed alone and identified his family as his “mom,
dad[,] and sister with whom he lives.”3 He was asked if he remembered having a
different mother when he was younger, which he acknowledged. However, he said he
did not remember anything good about spending time with her and described her as his
“ ‘bad mom.’ ” He did not want to see her and did not consider her his mother.
Sutherland reported mother and father had a brief encounter that resulted in her
pregnancy. In 2016, father was granted primary custody of Tristan with visits for mother.
In 2018, father filed a petition to modify visits, alleging mother was homeless and living
with an abusive boyfriend. Mother denied the allegations, but did not appear for the
hearing. Father was granted sole custody with once weekly professionally supervised
visits for mother. Father reported that after the hearing, mother texted him to ask him
about Tristan. He informed her of the supervised visits and asked her to contact his
attorney. She continued to text him, but he eventually blocked her phone number.4
Father stated he was more than willing to cooperate with the supervised visitation agency,
but he was never contacted about setting up visits. Three years later, he started the
process of setting up supervised visitation, but chose to pursue the abandonment
proceedings instead.
Mother reported she was granted supervised visitation in 2018, but did not appear
at the hearing because she did not have transportation. She said she attempted to contact
3 Tristan was referring to his stepmother.
4 Father later clarified he did not block her phone number. Rather, he “muted” her
text messages so that he would not see them.
3.
father about visits and asked about Tristan’s well-being numerous times. She provided
copies of text messages from 2018, 2019, 2020, and 2021, but admitted she never
attempted to exercise her court ordered supervised visits until July 2021. Father
responded to text messages in 2018 and 2019, but not in 2020 and 2021. Mother said she
never attempted to modify the family court orders because she wanted to show the court
she was stable. Mother moved from Bakersfield to Lancaster in 2018, which made
exercising her right to supervised visits difficult. However, she had been back in
Bakersfield for 18 months and signed up for supervised visits in July 2021, but stated
father did not contact the agency to set up visits.
Sutherland concluded that it did not appear it was father’s actions that prevented
mother from having a relationship with Tristan; rather, it was mother’s inaction. It had
been three years since she had any face-to-face contact with Tristan. Although she
provided text messages that showed she asked about Tristan, she did not take any action
that would result in seeing him as court ordered. Father believed he did not have any
obligation to interact with her because of the court order. Sutherland opined the
allegations appeared to be true and granting the petition would be in Tristan’s best
interest. She recommended father’s petition be granted.
Trial
On October 14, 2022, the court held a trial on father’s petition. The court took
judicial notice of the family court orders, received into evidence the investigative report
and the parties’ exhibits, and heard testimony from mother, father, and mother’s
boyfriend, O.F.
Mother’s Testimony
Mother testified she had not seen Tristan since he was three years old, but was
aware that she could have supervised visits. However, she did not begin the intake
process for visits until July 2021. Nor did she file a request to modify the custody order
or request unsupervised visits. Mother further testified she had offered to send clothes,
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money, and any other things Tristan might need to father since 2018. She said she was
willing to pay child support, but never did. She said she sent clothes and toys three to
four times since 2018.
Mother said that in 2018 she went to Heaven’s House to inquire about supervised
visits, but visits did not occur. Staff told her “it could be upwards of hundreds of dollars
per visit.” She did not do the orientation due to the fees. At that time, she was living in
Lancaster and was unemployed, which she let father know. Prior to the 2018 custody
order granting mother supervised visits, father had agreed to transport Tristan to her
location once a month, but father did not follow through with the plan. She said she
made various requests to video chat or visit Tristan between 2018 and 2020, but father
would not respond to her text messages. In 2020, she moved back to Bakersfield from
Lancaster, but did not start the intake process at the supervised visitation facility until
July 2021. Prior to 2021, she did not have money to exercise her supervised visitation
rights. However, she acknowledged there were multiple bus lines that went from
Lancaster to Bakersfield, and in 2019, her boyfriend would give her rides to Bakersfield
once a month. She also paid her roommates to give her rides at that time. In 2020, she
moved back to Bakersfield and acquired her own vehicle. Additionally, she was
employed in 2020 and 2021.
Father’s Testimony
Father testified that after the court granted him sole custody with supervised
visitation for mother, he immediately went to the visitation facility and completed the
paperwork and paid the intake fee. The court admitted into evidence the intake form
father completed dated June 2018. However, he was never contacted to begin visits until
July 2021. Father stated he did not see the text messages mother sent him requesting to
see Tristan because he “muted” her. Mother had requested to see Tristan in an
unsupervised setting and father did not feel comfortable going against the court order,
which required supervised visitation at a facility. He recalled mother sent Tristan toys for
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Christmas in 2018 and his birthday in 2019. He did not remember receiving clothes.
When he was contacted in July 2021 by the supervised visitation facility, he did not
complete the intake process and instead filed the petition for abandonment. Father
acknowledged mother asked him for his address several times since 2018, but he did not
provide it to her.
O.F.’s Testimony
O.F. was mother’s boyfriend and testified that in July 2021, he reached out to
father to try to set up visitation. He first called father, but father told him he had the
wrong number and hung up. He then sent father a text message, but father did not
respond.
Court’s Ruling
After hearing testimony and argument, the trial court took the matter under
submission and provided a written decision. In its written decision, the court stated:
“[Mother’s] inquiries about the minor’s well-being or periodic
requests to see Tristan … were not permitted by the existing court order.
… The [c]ourt finds that [mother’s] efforts to communicate by sending text
messages to [father] to be only token efforts to communicate with Tristan.
[Mother] was certainly aware of the court order for supervised visitation
and had contacted Heaven’s House to inquire about the process to sign up
for visitation. Yet, for over three years, knowing this was the way for her
to see Tristan, she made no effort to set up visitation as provided by the
court order. Nor did she make any effort to return to court to modify the
orders that were granted. … While she has alleged that she did not have
the money to have supervised visitation at Heaven’s House, she was able to
afford to pay rent and other living expenses at the time the order for
supervised visitation was made. She was employed in 2019 and again in
2020. She had a vehicle to work for Door Dash in early 2020. These facts
belie her statement that she could not afford supervised visitation until
2021.”
The trial court also considered the gifts she sent to be token efforts and found that
father had not acted as a “ ‘gate keeper’ ” preventing mother from having visitation. The
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court found there was clear and convincing evidence that mother voluntarily relinquished
her parental role and that it was in Tristan’s best interest to terminate parental rights.
On March 14, 2023, mother filed a notice of appeal.
DISCUSSION
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.).) “The purpose of such proceedings is to promote the child’s best
interest ‘by providing the stability and security of an adoptive home.’ (§ 7800.) The
statute is to ‘be liberally construed to serve and protect the interests and welfare of the
child.’ ” (Allison C., at pp. 1009–1010.) “A declaration of freedom from parental
custody and control … terminates all parental rights and responsibilities with regard to
the child.” (§ 7803.)
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 ….” (Id. at 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 (Amy A.).) It is not required that the statutory period be the period immediately
preceding the filing of the petition. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 922.)
When an appellate court reviews a trial court’s finding under section 7822, the
substantial evidence standard of review applies. (Allison C., supra, 164 Cal.App.4th at
7.
p. 1010.) Under the substantial evidence standard of review, all conflicts in the evidence
must be resolved in favor of the respondent and all legitimate and reasonable inferences
must be indulged in to uphold the judgment. (In re Brittany H. (1988) 198 Cal.App.3d
533, 549.) “Abandonment and intent ‘ “are questions of fact for the trial judge …. His
[or her] decision, when supported by substantial evidence, is binding upon the reviewing
court. 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 [citations.]” ’ ” (Allison C., at p. 1011.)
A. Substantial Evidence Supports That Mother Left Tristan in Father’s
Care and Custody Within the Meaning of Section 7822
Mother argues she did not “leave” Tristan within the meaning of section 7822
because “there was a ‘judicial taking’ of custody of Tristan from [her] that [did] not
convert[] into a ‘leaving’ through parental nonaction.” She argues that once the
July 2018 custody order was made, she lost her right to custody by judicial decree, not
abandonment.
A parent “leaves” a child when they actually desert him or her in another person’s
care and custody, or voluntarily surrenders the child. (Amy A., supra, 132 Cal.App.4th at
p. 69.) “Case law consistently focuses on the voluntary nature of a parent’s abandonment
of the parental role rather than on physical desertion by the parent.” (Ibid.) Additionally,
“under certain circumstances ‘it might be proper to conclude that a parent has “left” a
child … despite court intervention[,]’ ” that is—notwithstanding the existence of a court
order. (Id. at p. 70.)
In the present case, there is substantial evidence mother left Tristan in father’s care
and custody. (Amy A., supra, 132 Cal.App.4th at p. 69.) In 2018, mother failed to attend
the custody hearing that resulted in the custodial order giving father sole custody.
Thereafter, she made no effort to exercise her right to supervised visitation for
three years, or seek modification of the custody order. (In re Marriage of Jill & Victor D.
8.
(2010) 185 Cal.App.4th 491, 505 [“[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.”].) Mother did text father various
times asking to see Tristan and sent Tristan toys on a few occasions, but these were
merely token efforts. (§ 7822, subd. (b) [“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 .…”]; see In re Jacqueline H. (1979) 94 Cal.App.3d 808, 816 [concluding that
mother “left” the child when she did not seriously attempt to obtain visitation or modify
the custody order removing the child from her care].) The record contains no evidence
father attempted to prevent mother from exercising her supervised visitation rights. On
the contrary, immediately after the 2018 custody order was made, he went to Heaven’s
House and completed intake documents and paid the intake fee, but mother failed to do
the same and visits did not occur. Accordingly, we conclude substantial evidence
supports that mother voluntarily surrendered Tristan’s care and custody to father.
B. Substantial Evidence Supports That Mother Intended to Abandon
Tristan
Mother next contends she did not have the requisite intent to abandon Tristan. As
previously mentioned, there is a statutory presumption that a parent who fails to
communicate or provide support for one year has an intent to abandon. (§ 7822,
subd. (b).) Mother argues she rebutted the presumption because she sent father text
messages trying to see Tristan and her failure to seek professionally supervised visitation
as required by the court order was due to financial hardship.
There is ample evidence on the basis of which the trial court could base a finding
that mother’s finances did not prevent her from communicating with Tristan. Mother
testified the last time she saw Tristan was in December 2017, at which point she had joint
custody of Tristan and unsupervised visits. Mother testified she had moved to Lancaster
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from Bakersfield and did not have transportation. The custody order granting father sole
custody was awarded in June 2018. Mother testified she did not attend the hearing due to
lack of transportation. After the hearing, mother went to Heaven’s House to ask about
setting up supervised visitation, but did not go forward with the intake because she could
not afford the fees. At trial, mother repeatedly testified the reason she could not attend
supervised visits was because she could not afford the fees and did not have
transportation up until 2021. She said she did not even have $50 to pay for the intake fee
prior to 2021. However, she admitted there were multiple buses that went from Lancaster
to Bakersfield. In 2019, her boyfriend would give her rides to Bakersfield every month,
but she never went to set up visits on any of those occasions or went to the court
facilitator’s office. In 2019, she paid roommates to take her to work. Then, in 2020, she
moved back to Bakersfield with her boyfriend. At one point in 2020, she obtained her
own vehicle. She was employed in 2020 and 2021. As the court stated, she was able to
pay living expenses, but not the intake fee. The gifts she sent Tristan were not sufficient
to constitute support. (See Allison C., supra, 164 Cal.App.4th at p. 1012 [holding that
$1,100 in monetary support was “ ‘de minimis,’ insufficient, and ‘token’ ” for a
three-year period].) In sum, mother failed to make adequate efforts to communicate with
Tristan despite having an available outlet by which she could do so (i.e., supervised
visitation). Thus, substantial evidence supports the trial court’s finding that she intended
to abandon him.
DISPOSITION
The judgment is affirmed.
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