Marriage of Jill and Victor D. (2010) 185 Cal.App.4th 491, 110 Cal.Rptr.3d 369
Decided by the Third District on June 9, 2010
Summary of the facts: H and W married in 1991, had three children and separated in 2000 when W took the children and fled to a domestic violence shelter. She filed a petition for legal separation and requested restraining orders and the Yolo County Superior Court issued a TRO that allowed H no visitation until after the parties attended mediation. The parties stipulated that if the mediator found it appropriate, he could have supervised visitation and telephone the children. After a hearing at which H failed to appear, the court suspended visitation based on the mediator’s recommendation, awarded W sole legal and physical custody of the children and issued a permanent restraining order against H.
When W amended her petition to request a dissolution of marriage, H attempted to get the court to set aside the orders, but it refused. Over the next year, the parties did agree to some supervised visitation, but according to the mediator H was “obsessive” and had ongoing problems with drug use, emotional problems and violence. Ultimately, the mediator recommended that H undergo a psychological evaluation before being allowed to visit with the children and the trial court so ordered. H violated the RO on several occasions resulting in jail sentences; the trial court granted W’s request to renew it and extended it until the youngest child turned 18. When H moved to modify visitation, the trial court repeated the requirement that he have a psychological evaluation first and ultimately denied his motion, as well as his next motion for the same relief.
In May of 2006, W filed a petition in the Sacramento Superior Court requesting that the court terminate H’s parental rights and permit their adoption by her current husband. At about the same time, H filed another motion in the Yolo County dissolution action to modify visitation, but the trial court denied his motion “and ordered that father not file further such motions until he had completed the previously ordered psychiatric evaluation, anger management classes, individual counseling, and he had proof of random drug testing.” When the matter came on for trial, the court terminated H’s parental rights but on appeal, the Third District reversed on jurisdictional grounds. W refiled a petition in Yolo County alleging that H had abandoned the children “within the meaning of Family Code section 7822, in that he had not visited them since March 2001 and had ‘economically and emotionally abandoned his children.’” In opposition, H claimed that he did not leave the children and did not intend to abandon them. He also filed another visitation modification motion claiming that he had fulfilled the requirements of the prior order. At trial on W’s petition, H claimed that W and her family thwarted his visitation. As of that date, he owed $336,648.02 in back child support, but H claimed he did not pay because he was “broke.”
“The court found that father had abandoned the minors within the meaning of Family Code section 7822 and that termination of his parental rights was in the minors’ best interests. Specifically, the court found that father left the minors in mother’s custody and care in early 2001, for over a period of one year without any provision for support or communication from him; that father had intended to abandon the minors, as shown by his failure to support and communicate with them; and that father had not rebutted the statutory presumption of Family Code section 7822. Pointing out that father did not provide support for almost 23 months, the court found that father’s evidence about his financial condition was not credible, and that father had pursued work ‘under the table to avoid paying taxes and child support since 2003.’ As to father’s failure to communicate with the minors, the court noted ‘pounding your chest and saying you want to see your children is not the same as taking steps to do it…. [M]any of the steps that [father] took were more about the anger of his wife th[a]n they were about an intent to see his children.’ The court observed that, until 2006, father never took steps necessary to meet the court-ordered requirements to visit the minors. Finding it would be in the best interests of the minors to terminate father’s parental rights, the court did so.” H appealed; noting that “the facts … amply support the finding” that termination of parental rights was in the children’s best interests, the Third District affirmed.
The result on appeal: Stating that under the Family Code, “abandonment” for purposes of termination of parental rights “occurs when a ‘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 panel stated the issue as “whether, and if so when, a parent “left” his or her child in the care and custody of another person with the intent to abandon the child.” H argued that the court erred in starting its analysis with the date on which he first ceased contacting his children, contending that it should have considered the factors leading up to that time, including that W had sole legal and physical custody of the children. However, the court held that “(t)he relevant factual context for the trial court to examine in determining whether a parent has ‘left’ a child is the point at which there is a claimed voluntary relinquishment of custody and control by the parent. This may or may not be the same point at which the child came into the care and custody of the other parent. In this case, it is not the same.” Noting that “(t)here is no allegation that he, by action or inaction, abandoned the minors prior to February 2001,” but “(r)ather, the allegation was that, by his inaction, father abandoned the minors after February 2001,” it held that “the relevant factual circumstances to examine to determine whether he did so began in February 2001.”
It then cited previous cases and held that “(i)n determining the threshold issue of whether a parent has ‘left’ his or her 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.’ Thus, this court has held that 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; however, the parent’s later voluntary inaction may constitute a leaving with intent to abandon the child.” Analyzing the facts of the case under this law, the court concluded that
“(h)ere, as of February 2001, father stopped seeking to schedule visits with the minors. He left them in the care and custody of their mother for six months before the final custody and visitation orders were entered. The mediator could not find father after April 2001; indeed, father left California in August 2001 and did not notify the court or the mediator of his new address until October 2004. Father failed to attend the dissolution proceedings or oppose the relief sought by mother on the issues of custody, visitation, and child support. Father made no attempt to appeal the judgment and did not seek modification of the order for over three years. He made no effort to comply with the conditions that would have allowed him to contact the minors. And he did not provide for his children’s care in any way, did not seek any type of parental relationship with them, and did not pay child support until it was extracted from him through garnishment of his wages. This inaction is substantial evidence that father voluntarily surrendered his parental role and left the minors within the meaning of section 7822.”
In a footnote, the court said that “Father submitted evidence that he complied with drug testing in 2000 and had individual therapy sessions in 2000. As this was before the order specifying conditions necessary to contact the minors, it was not evidence of an effort to comply with the order. In addition, he submitted evidence that he signed up for chemical dependency classes in 2004; but there was no evidence he attended such classes or a parenting class in 2005. Evidence of simply signing up for classes, but not attending them, is not evidence of compliance with the court’s order that would have allowed father to contact the minors.”
Finally, H contended that there I was insufficient evidence that he intended to abandon his children. He admitted that that he did not pay child support or communicate with tyem for at least one year, and admitted that his failures to do so gave rise to the presumption that he intended to abandon them. However, he claimed that he rebutted that presumption “because he loved his children and wanted to see them.” He also argued that his repeated motions to modify his visitation rights “showed that he did not intend to abandon his children” and that although he moved to Florida, he “tried to communicate with the children through [mother] and his efforts resulted in him being arrested for violation of the restraining order.” He also admitted that he “never made any real concerted effort to comply with the support order,” but that what is “most important in looking at [his] failure to support is [mother's] feelings about that failure: she did not care if he[ ] ever paid support if he would voluntarily relinquish his parental rights. Hence, although there was a support order in place, [mother] essentially did not demand payment and [father] showed that he was unable to pay the support….”
The court disagreed, concluding that “the trial court was not required to believe father’s testimony regarding his intent and, in light of the other evidence, father’s testimony did not overcome the presumption of abandonment. Father need not have intended to abandon the minors permanently; it was sufficient that the evidence supports a finding he intended to abandon them during the statutory period.” It said that “(a)lthough father initially opposed mother’s efforts in court regarding custody and visitation, he did not appear at the hearing in August 2001, did not appeal the judgment from that hearing, and made no effort to modify the orders for over three years.” It also said that
“Father’s claim that he tried to communicate with the minors through mother rings hollow. Father knew there was a restraining order in place prohibiting him from contacting mother, and he knew that contacting her would not put him in communication with the minors. His leaving telephone messages and e-mails for mother and her parents was consistent with his earlier behavior of utilizing the minors as a cover to speak with mother. Father left signs for mother at the mediator’s office and attempted to pass messages to mother through the mediator, claiming that they were cards for the minors. However, when he earlier had supervised visitation with the minors, father obsessed with wanting to discuss mother and the divorce. When viewed in context, father’s behavior supports the court’s factual finding that the messages were more about father’s anger at mother than genuine attempts to communicate with or see the minors. Father knew what was required to allow him contact with the minors, namely his compliance with the court-ordered conditions. Yet, he made no effort to comply with those orders until 2006, some five years after they were issued. Equally telling is father’s failure to provide support for the minors. He made no support payments for almost two full years after he left the minors. At the time of trial, he was well over $300,000 in arrears in his child support payments. Over the course of seven years, he made a single voluntary child support payment, in the amount of $75.
… Based on the evidence presented, the court reasonably could find that, since 2003, father hid his earnings to avoid paying taxes and child support, which he thought was ‘absurd’ and had ‘no intention of paying if he [could not] see his children.”’ Mother’s ‘feelings’ about father’s failure to pay child support were irrelevant. … In any event, even if mother did not demand such payments, this did not relieve father of his responsibility to provide child support for the minors. In sum, father did not rebut the presumption that he abandoned the minors.”
My comment: What struck me about this case is that H’s actions are not all that uncommon in high conflict cases. He visited with the children initially but was too focused on getting back together with W to have meaningful visits. He lost his visitation rights due to his anger issues but could have regained them if he had complied with the court’s requirements for doing so. He was ordered to pay child support but felt that he was not going to pay if he could not see the kids. He could still have communicated with them by phone but was apparently so angry with W and convinced that her family was trying to keep him from the kids that he stopped calling.
Obviously, it was not enough for H to argue that he couldn’t lose his parental rights because he loved his kids. Something more was required, but this case does not answer the question of exactly where the line is between “not enough” and “just enough.” What is clear is that H’s attitude problems eventually resulted in termination of parental rights on a finding that he had abandoned the children. He obviously did not have the advice of counsel, or heed it if he had it.
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