Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CEFL02245, Kimberly Nystrom-Geist, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Petitioner and Respondent.
No appearance for Minor.
OPINION
CORNELL, J.
F.G. (father) appeals from an order declaring his daughter E.G. free from his custody and control pursuant to the provisions of Family Code sections 7820 and 7822 so that R.M. (stepfather) could adopt her. The family court granted stepfather’s petition, finding that father had not contacted nor supported E.G. for a period of one year, thereby invoking the presumption that father intended to abandon E.G. (§ 7822, subds. (a)(3), (b).)
All further statutory references are to the Family Code unless otherwise noted.
We conclude that once father produced evidence that he did not intend to abandon E.G, the presumption disappeared. Thus, the family court was required to determine whether father intended to abandon E.G. based on the evidence adduced at the hearing, without regard to the presumption. Because the family court erred in relying on the presumption of intent to abandon, the order must be reversed.
FACTUAL AND PROCEDURAL SUMMARY
S.M. (mother) lived with father for a period of approximately one and one-half years and gave birth to E.G. during the relationship. Mother admitted that father visited with E.G. during the periods when he was not confined, but stated his periods of freedom were rather brief—11 months immediately after E.G.’s birth and seven months when E.G. was approximately six years old. Father attended E.G.’s promotion from kindergarten and saw her approximately 10 times during the seven months between his two incarcerations. Mother and father agreed on various times for the visitation. Mother also received help from father’s mother and sister while father was incarcerated.
Mother testified that father provided limited financial support after he was released from his first incarceration. He provided money for clothing, eyeglasses, and gifts when mother asked him to do so. Mother did not state that father refused to provide financial support when she asked him to do so. In other words, it appears father provided financial support whenever mother asked him to do so.
After father was incarcerated for the second time (the beginning of 2005), mother moved. She did not provide father with her new address, nor did she provide the address to father’s family. Father was provided with mother’s address when she served him with legal papers and wrote to him in 2007 about stepfather adopting E.G. Father’s family had mother’s phone number. Mother did not communicate with father while he was incarcerated. Mother also obtained a court order that prohibited visitation with father. She believed father should not have any contact with E.G. unless father obtained a court order permitting him to do so.
Mother could not recall if she permitted E.G. to visit father while he was incarcerated in the Fresno County jail.
S.G., father’s mother (grandmother) testified that she attempted to keep in contact with E.G. while father was incarcerated, but she had only mother’s phone number, and mother prohibited such contact after a while. Grandmother also attempted to locate mother, but her efforts were unsuccessful.
Father testified and admitted he was E.G.’s father. He claimed to be active in E.G.’s life when he was not incarcerated. When he was released in April 2004, he met with mother and established a visitation schedule. Father saw E.G. throughout the remaining months of that summer. The visits would last for four to five hours, and the time would be spent watching television, playing, going out to eat, and shopping. He bought presents for E.G. and would provide mother with funds whenever she asked. E.G. was happy to see her father when he picked her up.
Mother would not provide father with her address at any time after he was released from his first incarceration. Father believed mother’s refusal was because she was married to another man who would not approve.
Father received a letter and legal papers from mother while he was incarcerated, and these items had a return address. Father did not know, however, if E.G. lived at that address. Nor did father believe that mother would pass messages to E.G. since the legal papers sought father’s approval for stepfather to adopt E.G. Father immediately wrote to the court contesting any attempt to change his daughter’s name or to divest him of his parental rights.
Father could not call mother’s phone number while he was incarcerated because all calls were collect calls and mother’s phone would not accept collect calls. Father would call his family, and they would call E.G. on another phone so messages could be relayed instantly between father and daughter. Father would have written to E.G. if he had had an address, as he did to his other children. Father denied that he abandoned E.G.
Finally, the family court spoke with E.G. in chambers with stepfather, father’s attorney, and a court reporter present. Only the family court asked questions of E.G.
E.G. remembered father from when she was about five years old. She did not think of him as her dad, but he did help her with her homework. Father often left her with other people. She was left with some of her cousins, but they would not play with her. Father also used drugs in front of her and had lots of tattoos. E.G. thinks of stepfather as her dad. Stepfather has been great. She would like to be adopted by stepfather.
The family court rendered its decision on the record. The family court found E.G. was believable and found both mother and father believable in most respects, although the family court found the statements about the attempts to locate E.G. by father’s family were not entitled to great weight. The family court emphasized that the proceeding was pursuant to the terms of section 7800 et seq., and that the purpose of these statutes was to serve the welfare and best interests of the child by providing stability and security for the child. The family court acknowledged that the burden was on stepfather to prove by clear and convincing evidence the elements of the statute.
The family court then found that father had never supported E.G., and his efforts were best classified as token efforts. The family court stated, “The court does find that the failure to support alone is sufficient grounds for termination, coupled with the intent. The Court finds that the presumption set forth in Family Code section 7822(b) does apply. And that regarding support, there have been only token efforts from 2004 to the present. And no efforts at all from 2005 to the present regarding the support of [E.G.]”
The family court next turned to the issue of communication. The family court found that father was a part of E.G.’s life for only six or seven months and, while E.G. remembered her father, her memories were not positive. The family court next found that from 2005 to the present that father had not made any efforts to find E.G. The family court found it significant that father did not attempt to contact E.G., even after he was served with legal papers by mother while he was incarcerated. The family court then summarized its findings.
“The Court has considered the wishes of [E.G.] It is clear that she wishes [stepfather] to be her father. She was able to speak of the things that a father does. She identified some memories of [father].… She speaks of wishing to have [stepfather] as her father. She described a mother and a father, both as someone who would be with her and who would take care of her. Those are not the exact words that she gave, but that was clear intent of her description. She identified those people as [mother and stepfather]. [¶] [Stepfather] is the one who is serving on a daily basis as a father to [E.G.] The court finds there have been less than token efforts by [father] since 2005 to attempt to find or communicate with [E.G.] The presumption applies. There were many options available, none of which were pursued. A six- or seven-month relationship does not fit [E.G.]’s definition of a father, nor does it fit the legal definition of a father. [¶] The Court therefore finds, based on clear and convincing evidence, that it is in the best interest of the child that the parental rights of [father] be terminated. The petitioner has met his burden. [Father]’s rights are terminated.”
DISCUSSION
This action to terminate father’s parental rights, which was filed to permit stepfather to adopt E.G., requires a family court to address important competing concerns, each of which is addressed in the statutory scheme.
“Statutes authorizing an action to free a child from parental custody and control are intended foremost to protect the child. [Citation.] Typically, such statutes are invoked for the purpose for terminating the rights of one or more biological parent, so the child may be adopted into a stable home environment. [Citations.] In any event, the best interests of the child are paramount in interpreting and implementing the statutory scheme. [Citation.] Indeed, our Legislature has declared that the statutory scheme ‘shall be liberally construed to serve and protect the interests and welfare of the child.’ [Citation.] It further directs that the trial court ‘shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child.’ [Citation.] [¶] We recognize, as well, that ‘[t]he relationship of a natural parent to [his] child[] is a vital human relationship,’ with far-reaching implications for the child’s growth and development. [Citation.] We therefore view the involuntary termination of parental rights as a ‘drastic remedy which should be resorted to only in extreme cases of neglect or abandonment.’ [Citation.] In light of these weighty concerns, proof of abandonment must be established by clear and convincing evidence. [Citation.]” (Neumann v. Melgar (2004) 121 Cal.App.4th 152, 162-163.)
Typically, when a stepfather seeks to adopt a child, a petition is filed pursuant to section 8604 seeking an order of the court to permit the adoption without the consent of the noncustodial parent. This section permits the family court to grant such an order when it finds that the noncustodial parent has willfully failed to communicate with and pay for the care, support, and education of the child for a period of one year. (Id., subd. (b).)
Instead of filing a section 8604 petition, stepfather filed a petition pursuant to section 7820 et seq. Section 7820 permits the trial court to issue an order declaring a child free from the custody and control of either or both parents if the court finds the grounds described in the chapter.
Stepfather relied on the provisions of section 7822 in seeking an order pursuant to section 7820. As relevant here, section 7822, subdivision (a) provides that a section 7820 order may be issued if a noncustodial parent leaves a 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).) Subdivision (b) of section 7822 provides that the “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.…”
“Thus, a section 7822 proceeding is appropriate where ‘three main elements’ are met: ‘(1) the child must have been left with another; (2) without provision for support or without communication from … his parent[] for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done “with the intent on the part of such parent … to abandon [the child].”’ [Citation.]” (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).)
The issue in this case is whether father intended to abandon E.G. within the meaning of the statute. Abandonment requires “‘“‘an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relation and throw off all obligations growing out of the same.’” [Citations.]’ [Citation.]” (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754.) “To abandon means to give up a right absolutely with no intention of reclaiming it, and it must be shown by the clear, unequivocal and decisive act of the party. [Citations.]” (Guardianship of Kerns (1946) 74 Cal.App.2d 862, 868 (Kerns).) The question of whether intent to abandon has existed for one year is a question for the court. (In re Gano (1958) 160 Cal.App.2d 700, 706.)
The family court relied on the presumption found in section 7822, subdivision (b) in reaching its conclusion. The court twice stated in its pronouncement of judgment that the “presumption applies.” The court’s reliance on this presumption, in this case, was misplaced.
The presumption in section 7822 is one that affects the burden of producing evidence. (In re Rose G. (1976) 57 Cal.App.3d 406, 419-420.) As the Rose G. court explained, “The determinative factor in classifying the [section 7822] presumption as one [affecting the burden of proof (Evid. Code, § 606) or one affecting the burden of producing evidence (Evid. Code, § 604)] is that of the public policy served by the presumption. [Citation.] If the only public policy supporting the creation of the presumption is that of facilitating the determination of the particular action in which the presumption is to be applied, the presumption is one that affects the burden of producing evidence. [Citation.] On the other hand, if a presumption is established to effectuate some public policy other than, or in addition to, the policy to facilitate the determination of the particular action in which the presumption is to be applied, the presumption is to be considered as one that affects the burden of proof. [Citation.] [¶] … [W]e consider that the presumptive fact of an ‘intent to abandon’ constitutes a logical inference to be drawn from the basic facts of the presumption—a [one-year] period without provision for support by, or without communication from, such parent. A logical-inference presumption tends to indicate a policy of furtherance of the trial of the action and that such a presumption should be classified as a presumption that affects the burden of producing evidence. We find no other public policy that supports the section [7822] presumption.” (Ibid.)
“When foundational facts are established, a presumption affecting the burden of producing evidence obligates the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced to support a finding of its nonexistence—in which event the trier of fact determines the existence or nonexistence of the fact from the evidence and without regard to the presumption. [Citation.] Although the presumption disappears where … it is met with contradictory evidence, inferences may nevertheless be drawn from” the foundational facts. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)
Here, once father introduced evidence of the nonexistence of the presumed fact, i.e., evidence that he did not intend to abandon E.G., the family court was required to determine whether father intended to abandon E.G. (1) without regard to the presumption; (2) by placing the burden of proof by clear and convincing evidence on stepfather; and (3) by weighing the evidence that father did not intend to abandon E.G., and any appropriate inference arising therefrom, against the evidence that father intended to abandon E.G., and any appropriate inferences arising therefrom, and resolve the conflicting evidence. (In re Rose G., supra, 57 Cal.App.3d at p. 424.)
The family court erred when it relied on the presumption once it determined the foundational facts were proven (lack of support and lack of communication) without considering the evidence that father did not intend to abandon E.G. Once father introduced evidence that he did not intend to abandon E.G., which he provided by testifying that he had no such intent, the family court was required to ignore the presumption and decide the issue after weighing the conflicting evidence. This error requires that we reverse the order of the family court.
The evidence relating to father’s intent, as well as the evidence relating to the foundational facts, was extremely close. Father was incarcerated for the majority of E.G.’s life. He had no ability to visit or support E.G. during this time. Mother admitted that she did not provide father with her address when he was incarcerated the second time (2005 to the time of trial), therefore he could not communicate with E.G. by mail. Father objected immediately when he received papers from mother seeking his consent to stepfather’s adoption of E.G. in 2007. While it is true that father received mother’s address with these papers, considering the request it was not unreasonable for father to conclude that any attempt to contact E.G. would be unsuccessful.
Moreover, mother admitted that when father was not incarcerated he visited regularly with E.G. and assisted with E.G.’s support. While father’s conduct and efforts at support were less than stellar, his assistance is evidence that he did not intend to abandon E.G.
The family court also appeared to focus on the best interests of the child. As stated above, the statutory scheme emphasizes this important element. However, “Absent intent on the part of the parent[] to abandon the child … the best interests and welfare criteria are simply not applicable.” (In re Baby Boy S. (1987) 194 Cal.App.3d 925, 933.) The Baby Boy S. court emphasized that the family court considers the best interests of the child only after “the factual determination is made to support or deny a termination under subdivisions of section [7822]. Where the intent of the parent is involved as to abandonment, [section 7822, subdivision (b)] does not mandate a finding of intent when none is present simply to assure the best interests and welfare of the child.” (Id. at p. 934.)
The family court also found that father failed to provide financial support for E.G. Financial inability, however, may excuse the failure to provide support. (Adoption of Oukes (1971) 14 Cal.App.3d 459, 467.) Some cases, albeit older cases, have held that nonsupport cannot, standing alone, prove intent to abandon or trigger the presumption of intent to abandon. (Allison C., supra, 164 Cal.App.4th at pp. 1013-1014, citing In re George C. (1977) 68 Cal.App.3d 146, 159 and In re Cattalini (1946) 72 Cal.App.2d 662, 667.) In Kerns, supra, 74 Cal.App.2d at page 868, the court recognized that a parent’s consent to permit another to support a child, or acquiescence in such voluntary support, does not constitute a failure to support a child within the meaning of the statute.
We are not stating that the family court was compelled to conclude that father did not intend to abandon E.G. We conclude, however, that this conflicting evidence renders it reasonably probable that the family court would have found that father did not intend to abandon E.G. if it had not relied on the presumption found in section 7822, subdivision (b). (People v. Pierce (1979) 24 Cal.3d 199, 206-207.)
DISPOSITION
The order appealed from is reversed and the matter is remanded to the family court to weigh the conflicting evidence regarding father’s intent to abandon E.G. and render a decision without regard to the presumption found in section 7822, subdivision (b).
WE CONCUR: VARTABEDIAN, Acting P.J., LEVY, J.