In re J.G. CA4/1

Filed 12/4/14 In re J.G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.G., a Minor.

D065561
M.M.,

Plaintiff and Respondent, (Super. Ct. No. A59059)

v.

J.G.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee

Lagotta, Judge. Affirmed.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for

Defendant and Appellant.

Amy Zimmer Tobin, under appointment by the Court of Appeal, for Plaintiff and

Respondent.
 Nine-year-old J.G. (JG) appeals the denial of his father's and stepmother's petition

to declare him free from the custody and control of his biological mother, M.M.

(Mother). (Fam. Code, § 7822, subd. (a)(3).)1 JG contends substantial evidence did not

support the court's findings. We reject JG's contentions and affirm.

FACTS AND PROCEDURE

Factual Background2

JG was born in January 2005. His parents, Father and Mother, met and began

dating in 2001 or 2002 and moved to Arizona at the end of 2004. In November 2004,

while pregnant with JG, Mother was pursued in a police chase; she fled to Mexico and

remained there for one month. Mother returned to Arizona and gave birth to JG.

About one year later, Mother was arrested for bringing drugs into the United

States across the Mexican border, and received a four-year sentence in Arizona. Father

and JG then moved to San Diego to live with Father's parents. During the next four

years, Mother maintained contact with JG through letters, cards, phone calls, and

occasional visits.

While Mother was incarcerated in Arizona, Father began his relationship with his

current wife, Nicole. Father, JG, and Nicole moved in together in October 2007. In May

2008, Father filed for and was awarded legal and physical custody of JG, with Mother's

approval. Nine months later, in February 2009, Father and Nicole married.

1 All further unspecified statutory references are to the Family Code.

2 We summarize the relevant facts in the light most favorable to the court's order,
drawing all reasonable inferences in support of the court's findings.
2
 At about this same time, Mother was released from prison and moved back to

San Diego. She immediately filed a motion in family court to obtain visitation with,

and/or joint custody of, JG. In about April 2009, the family court granted her weekly

supervised visits with JG. During the next two to three months Mother visited with JG

on a weekly basis, and would additionally speak with him on the telephone when he was

visiting the paternal grandparents.

However, in July 2009, Mother was arrested and was placed in custody for about

two months. During this time, Mother sent letters to Father apologizing for her criminal

behavior and also complaining that he was not "sharing" JG with her.

After her release in August 2009, Mother asked the paternal grandparents to

supervise her visits with JG. Although they were willing to do so, Father refused to allow

them to assist Mother. However, the paternal grandparents helped Mother pay for

weekly supervised visits during the next two months. Mother then continued to have

weekly visits with JG.

In October 2009, Mother relapsed and was arrested for a theft offense. She was

incarcerated from December 2009 to August 2010. While in custody, Mother maintained

contact with JG through phone calls and letters.

In August 2010, Mother moved to a rehabilitation facility and, in November 2010,

was permitted weekly supervised visits with JG. During this time, Mother and JG

developed a close, positive relationship. The trained supervisor found Mother was "very

motivated" to strengthen her relationship with JG. In March 2011, the family court

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granted Mother unsupervised visits with JG, and in June 2011, Mother and JG began

overnight visits while she was living in a halfway house.

However, three months later, in about September 2012, Mother was arrested for a

methamphetamine-related offense. She received a six-year sentence and was

incarcerated in March 2013 at Las Colinas Detention Center. Mother has since sent JG

numerous cards and letters, many with elaborate drawings and graphics. Las Colinas

allows visitors, but Father refused Mother's request that he bring JG for visits. Father

also initially did not permit any phone contact between JG and Mother, but Mother

successfully petitioned the family court to require weekly communications. In about

June 2013, the family court affirmed Father's sole legal and physical custody of JG, and

granted Mother weekly phone calls with JG, to be followed by a step-up visitation plan

upon her release.

Section 7822 Petition

One month after the family court ordered Father to allow the weekly phone calls,

Father and Nicole petitioned the family court for JG's freedom from Mother's custody and

control under section 7822, subdivision (a)(3). They filed the petition as a companion

motion to Nicole's stepparent-adoption petition. They alleged Mother left JG "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." (See § 7822, subd. (a)(3).) As later clarified, they

claimed Mother had no contact with JG from July 2009 to September 2010, and that she

had failed to provide financial support for JG except for a brief period in 2011 and 2012.

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 Five months later, San Diego County Health and Human Services Agency

(Agency) adoptions social worker Tina Jako prepared a statutorily-required report after

interviewing all participants (Father, Nicole, Mother, and JG). In the report, Jako

recommended that the court deny the section 7822 petition. Jako stated she found

Mother's claims credible that she "has always attempted to have contact with her son,"

and did not believe Father's and Nicole's assertions that there was no contact between

Mother and JG from July 2009 through September 2010. Jako also opined that adoption

was not in JG's best interests because he had not been provided with full information

regarding Mother's status and whereabouts, and he "needs to be in therapy to assist with

his understanding of the truth and reality."

In the report, Jako said that she twice spoke with 8-year-old JG (who has been

diagnosed with ADHD), and that JG said he wanted to be adopted by Nicole, calls Nicole

"mom," and did not "like" contacts or visits with Mother. However, Jako also said that

JG expressed conflicting feelings about Mother, saying at one point that he liked

Mother's letters and visits. Based on her training and experience, Jako believed that JG's

statements about Mother were rehearsed and confused, and that the validity of his

opinions were suspect because he had not been given accurate, age-appropriate

information regarding his birth mother.

Section 7822 Court Hearing

At the hearing, Father and Nicole both testified in support of their section 7822

petition. Father said that JG and Nicole have a very close relationship, and adoption

would provide JG with a "stable environment." Father maintained that Mother does not

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have "anything positive to offer" JG, and that Mother has "been in and out . . . of jail for

the last 20 years. . . . Once she starts getting back into his life, it's hard seeing him after

she has to leave again for a couple of years, and then I don't think that's good for him."

Nicole testified that she was concerned for JG's safety when he was with Mother

because of her drug addiction and criminal history, and she discussed her difficult

interactions with Mother. Nicole said that she considers JG to be her son and she "love[s]

him to death." She said she goes to all of his parent-teacher conferences, is in

e-mail contact with JG's teachers, and is "constantly involved with everything for him."

She said she believes adoption would be in JG's best interests because "he needs a stable

environment with somebody who wants to be there, who proves that they want to be there

and is there physically, emotionally, . . . and actually knows him."

Although both Father and Nicole denied (or did not remember) that Mother had

contact with JG between July 2009 and August 2010, Mother presented evidence

(including her own testimony and the testimony of the paternal grandparents) that there

were contacts during this time. Although somewhat reluctant witnesses, the

grandparents' testimony reflected that Mother had made efforts throughout the years to

maintain a relationship with JG, including during the July 2009 through August 2010

time period. Mother also presented independent witnesses who testified about the

positive nature of JG's supervised visits before and after Mother's 2009-2010

incarceration, and that Father and Nicole sometimes made it difficult for Mother to have

the visits.

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 In her testimony, 45-year-old Mother acknowledged she is a methamphetamine

addict, but said she never intended to abandon JG and discussed her strong love for JG

and her numerous contacts with JG (as summarized above). She said she has made one

or two video recordings for JG and submitted a computer record of numerous

cards/graphics she sent JG while at Las Colinas. She said that she is actively working on

her addiction recovery while in prison. She said that although she is able to have visitors,

Father has refused to bring JG for visits. Father also refused to take her phone calls until

the family court ordered that Mother be permitted to speak with JG at least once a week.

Social worker Jako also testified at the hearing. Jako has a master's degree in

social work, has been an Agency social worker (mostly in the adoptions section) for

about 27 years, and has worked in the "freedom from custody and control" section for the

past 12 years. Jako said that Nicole is a very "organized person" who is "responsible"

and "on top of [things]." But Jako reaffirmed her recommendation that the court deny the

section 7822 petition. Based on her professional experience and her review of all

available information, Jako found that Mother did not intend to abandon JG. Jako said

the quality of Mother's contacts was unusual for this type of case. She found Mother's

cards and letters to JG "to be quite extensive," and consistent with the information

Mother provided about the nature and amount of contact she had over the years. Jako

also indicated that although she did not need to reach the issue, she did not believe a

termination of parental rights was in JG's best interests because JG did not have an

appropriate understanding of the relevant issues or events regarding his biological

mother.

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 Counsel's Arguments

During closing arguments, counsel for Father and Nicole emphasized the evidence

showing Mother failed to pay support for JG and the absence of any contact between

Mother and JG from July 2009 through August 2010. Counsel acknowledged that

Mother "clearly showed that she wanted to have contact with her son," but argued that

Mother manifested an intent to abandon JG by repeatedly engaging in criminal conduct

leading to lengthy incarcerations. Counsel also emphasized Nicole's strong attachment to

JG and that JG has substantially benefited from his relationship with his stepmother.

JG's counsel urged the court to grant the petition. Counsel stated that she

interviewed JG "within the past week and a half and he has grown up a lot since the first

time I interviewed him . . . in July of 2013. . . . And [in the latest interview] he was very,

very clear in his direction to me as my client. He wishes to be adopted by his

stepmother." JG's counsel argued that despite the many "letters, cards, and supervised

visits, and family court hearings," Mother abandoned JG because she has repeatedly

chosen to engage in criminal behavior and therefore voluntarily become unavailable to

parent her son. She argued that JG needs stability, and has never viewed Mother as a

"parental figure."

Mother's counsel argued the evidence showed Mother is committed to her son and

has maintained contact with JG at all times. Counsel noted that Mother had made

numerous attempts to resolve her addiction problem, and continues to engage in recovery

efforts while in prison. Regarding Mother's financial support obligations, counsel stated

that "I don't think Mother has ever tried to avoid her financial obligation. I think that

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there were periods of time when she was incarcerated she did not have the financial

ability to pay. But when she was out of custody, was working, it appears that the DA

child support effectuated a garnishment, so there were always monies that she, ultimately,

was providing through that garnishment to provide for and help with the support of her

son." (Italics added.)

Court's Findings

After considering the evidence and argument, the court denied the petition. The

court stated that it "weigh[ed] and [took] into account the expertise of Ms. Jako, who has

been a social worker since 1991," and found the paternal grandparents' testimony was

"very persuasive" regarding Mother's consistent communications and contacts with JG

and her commitment to maintaining a relationship with JG. The court discussed Mother's

conduct both when she was in custody and when she was released from custody. The

court said that when she was out of custody, Mother "made every effort through the

family court to obtain the ability to have supervised visits. And she did, in fact, follow

through with the visits." The court found that "[w]hile in custody [Mother] did

everything she could within the rules of the facilities . . . to either communicate with her

son by telephone or by letter or by visits when individuals would bring her son to the

facility."

The court also found that it was in JG's best interests to continue his relationship

with his biological mother, noting Jako's testimony that it was unclear whether JG's

opinions were based on an appropriate understanding of the relevant circumstances. The

court concluded that "although I understand and appreciate . . . the fact that [Nicole] has

9
taken on the role in this matter as mother to [JG], there is insufficient evidence to support

by clear and convincing evidence that [Mother] has abandoned her child with the intent to

abandon, pursuant to . . . section 7822, nor is it in the best interest of the child that the

mother's rights be terminated." (Italics added.)

DISCUSSION

I. Applicable Legal Principles

If a parent has left her 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," a court may declare the child free from the parent's custody and control and

terminate the parent's rights. (§§ 7822, subd.(a)(3), 7803; see In re E.M. (2014) 228

Cal.App.4th 828, 838 (E.M.).) The failure to provide support or the failure to

communicate during the statutory period "is presumptive evidence of the intent to

abandon." (§ 7822 subd. (b).) This presumption may be overcome by evidence showing

the parent had no intent to abandon. " ' " '[T]o constitute abandonment there must be 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

[relationship].' " ' " (E.M., at p. 839; In re Daniel M. (1993) 16 Cal.App.4th 878, 886

(Daniel M.).) To negate abandonment, a parent must engage in more than "token efforts

to support or communicate with the child." (§ 7822, subd. (b); E.M., at p. 838.)

The party seeking to sever the parent-child relationship must prove abandonment

and the intent to abandon by clear and convincing evidence. (§ 7821; see In re Amy A.

10
(2005) 132 Cal.App.4th 63, 67-68.) In determining intent, relevant factors include the

quantity and quality of the parent/child communications and the genuineness of the

parent's efforts to maintain the relationship. (See In re B.J.B. (1986) 185 Cal.App.3d

1201, 1212.) Although an intent to abandon involves a subjective inquiry, the intent

finding may be based on "an objective measurement of conduct." (People v. Ryan (1999)

76 Cal.App.4th 1304, 1316; see In re Rose G. (1976) 57 Cal.App.3d 406, 424 (Rose G.).)

A parent who honestly desires to maintain a relationship, but who does nothing to

implement this desire, can be found to have the intent to abandon the child. (See In re

B.J.B., supra, 185 Cal.App.3d at p. 1212.)

" ' "[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." ' " (E.M., supra, 228 Cal.App.4th at p. 839.)

"The reviewing court examines the record [for] substantial evidence to support the trial

court's conclusions. [Citation.] The reviewing court has no power to pass on the

credibility of witnesses, resolve conflicts in the evidence or determine the weight of the

evidence. [Citation.] It is the appellant's burden on review to show that the evidence is

insufficient to support the trial court's findings." (Ibid.)

II. Analysis

A. Presumption of Abandonment

The court did not make an express finding whether the evidence was sufficient to

trigger a presumption of abandonment under the statute. (§ 7822, subd. (b).) However, it

appears the court did not apply the presumption. The court rejected Father's and Nicole's

11
argument that Mother had no contact with JG for the one year period July 2009 through

August 2010. The evidence supported this finding. There was evidence showing that

Mother sent cards and letters and had occasional phone calls with JG during this period,

and that these contacts reflected Mother's meaningful efforts to maintain her relationship

with her child. The court found the grandparents' testimony to be particularly credible on

these issues.

With respect to the child support issue, the evidence showed that at various times

Mother did pay child support (through voluntary payments and/or wage garnishments),

but at other times, Mother did not meet her support obligations primarily because of her

claimed inability to pay. Generally, nonsupport by a parent who does not have the ability

to pay cannot, standing alone, prove intent to abandon or trigger the presumption of intent

to abandon. (See Allison C., supra, 164 Cal.App.4th at p. 1013; Baby Boy M. (1990) 221

Cal.App.3d 475, 482; Guardianship of Pankey (1974) 38 Cal.App.3d 919, 932; Adoption

of Oukes (1971) 14 Cal.App.3d 459, 467.) We presume the court understood and

properly applied this rule. (Evid. Code, § 664.)

In any event, as explained below, even if the court found (or should have found)

that Father and Nicole met their burden to trigger the statutory abandonment

presumption, substantial evidence supported that Mother rebutted the presumption.

B. Substantial Evidence Supports Court's Finding of No Intent To Abandon

At the section 7822 hearing, Mother presented evidence showing she consistently

maintained communication and contacts with JG, including when she was incarcerated.

As found by the trial court, this evidence supported that these interactions were not

12
"token" communications and instead the communications reflected meaningful efforts to

create and maintain a relationship to the best of her ability.

At the hearing, counsel for Father and Nicole acknowledged there were two very

different versions of the facts presented at trial: (1) their testimony showing minimal and

perfunctory contact from Mother, and (2) Mother's testimony showing a constant stream

of letters, notes, telephone calls, family court petitions, and (sometimes) personal visits.

Counsel for Father and Nicole urged the court to accept their testimony, and to reject

Mother's testimony, particularly because she was a drug addict and had a lengthy

criminal history. Although the trial court could have done so, it was not required to

disbelieve Mother, particularly because her version of the events was corroborated by

other witnesses and documentary evidence. After considering all the evidence and

observing the demeanor of the parties and witnesses, the court was in the best position to

ascertain the truth regarding the parties' differing versions of the facts. The court acted

within its authority to find Mother's version credible.

JG contends that Mother abandoned him because she voluntarily put herself in a

position "not to parent." He notes that Mother has spent about two-thirds of his life in

custody, and she remains incarcerated today.

Although this argument has considerable intuitive appeal, it is not a sufficient

basis for a termination of parental rights under California law. California courts have

long recognized that a noncustodial parent's incarceration is insufficient to show

abandonment under section 7822, subdivision (a)(3). (See In re T.M.R. (1974) 41

Cal.App.3d 694, 699-700; see also In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402;

13
Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011-1012.) An incarcerated

parent who makes meaningful efforts to maintain a relationship with the child and takes

advantage of all opportunities to do so, does not necessarily forfeit his or her parental

rights. "[T]he involuntary termination of parental rights [is] a 'drastic remedy which

should be resorted to only in extreme cases of neglect or abandonment.' " (Neumann v.

Melgar (2004) 121 Cal.App.4th 152, 163 (Neumann); see Hoversten v. Superior Court

(1999) 74 Cal.App.4th 636, 641.)

JG contends that Mother could not negate abandonment "simply by intending to

become a parent sometime in the future." We agree. However, there was evidence

presented from which the trial court could find that Mother did not merely sit back and

wait until she was out of prison to maintain the relationship. There was evidence

showing she took affirmative steps—including sending elaborate cards and letters,

telephoning, filing petitions in family court to obtain visitation orders, and visiting when

she was able—to continue her relationship with her son. The fact that she had never

assumed a day-to-day parental role does not show the court erred in concluding that there

was no intent to abandon her child under section 7822, subdivision (a)(3). Although the

parental-type bond is a requirement in other statutory contexts (see Welf. & Ins. Code,

§ 366.26), it is not the dispositive issue in a parental-abandonment case where there is

one fit parent.

In this respect, this case is distinguishable from Adoption of O.M. (2008) 169

Cal.App.4th 672, upon which JG relies. In O.M., the issue was whether the relationship

14
between a biological father and his infant child qualified for constitutional protection

under Kelsey S. and thus permitted him to block a third-party adoption. (O.M., at

pp. 678-682; Adoption of Kelsey S. (1992) 1 Cal.4th 816.) To qualify, the biological

father was required to " 'demonstrate "a willingness himself to assume full custody of the

child—not merely to block adoption by others." ' " (O.M., at p. 681; Kelsey S., at p. 849.)

The father acknowledged he did not meet the Kelsey S. criteria, but argued the mother

prevented him from doing so. (O.M., at p. 680.) The court rejected the argument in part

because it was the father's criminal actions (and subsequent 12-year prison sentence) that

led to his inability to fulfill his parental responsibilities. (Ibid.)

This case is distinguishable because it arises under section 7822, subdivision (a)(3)

which assumes one fit parent and focuses on the noncustodial parent's intent to abandon

the child. The issue in O.M. involved third-party adoption and concerned whether the

father's affirmative action upon the child's birth allowed him to step up to a presumed

father status. (O.M., supra, 169 Cal.App.4th at pp. 674-675.)

JG's reliance on Rose G., supra, 57 Cal.App.3d 406 is also misplaced. In Rose G.,

it was "undisputed" that neither of the parents "had communicated, even on a 'token'

basis, with the two minors" for the statutory period. (Id. at p. 423.) The facts showed

that the mother (who was not incarcerated) had the full opportunity to visit with her

daughters, but she took no steps to do so. (Id. at pp. 412-414, 424.) With respect to the

father (who was incarcerated for a portion of the statutory time), the court stated that

"being incarcerated does not, in and of itself, provide a legal defense to abandonment of

children," noting that "it was possible [for the father] to ascertain the children's

15
whereabouts and at least show concern about their welfare . . . ." (Id. at pp. 424-425.)

Unlike the parents in Rose G., there were facts supporting that Mother showed substantial

concern with JG's welfare and made efforts to play a role in his life despite her

incarceration.

Finally, JG's focus on a best interests analysis does not advance his position.

Although always a relevant consideration in juvenile proceedings, the child's best

interests is not a factor in the court's initial determination whether a parent abandoned his

or her child under section 7822, subdivision (a)(3). (In re Baby Boy S. (1987) 194

Cal.App.3d 925, 933 ["Absent intent on the part of the parents to abandon the child . . .

the best interests and welfare criteria are simply not applicable"]; see In re Daniel M.,

supra, 16 Cal.App.4th at p. 886; see also Kelsey S., supra, 1 Cal.4th at p. 849; In re

Cheryl E. (1984) 161 Cal.3d 587, 606.) Without a showing of unfitness, "[w]e . . . do not

in our society take children away from their mothers—married or otherwise—because

[there is] a 'better' adoptive parent . . . ." (Kelsey S., at p. 846.) It is only after the court

finds parental abandonment, that the issue of the child's best interests comes into play. If

the court finds abandonment, the court must then consider the child's best interests in the

determination whether to terminate parental rights. (See Neumann, supra, 121

Cal.App.4th at p. 156; In re Marcel N. (1991) 235 Cal.App.3d 1007, 1014-1015.)

Further, there was substantial evidence to support the court's observation that

termination of parental rights was not in JG's best interests. Based on the experienced

social worker's opinion that JG had not been provided full (age-appropriate) information

regarding his mother's situation and the ramifications of a stepparent adoption, and that

16
JG could benefit from therapy to understand these issues, the court had a reasonable basis

to conclude that his best interests would not be served by a parental termination at this

time. The statute requires a court to "consider the wishes of the child, bearing in mind

the age of the child," when evaluating the child's best interests. (§ 7890.) Contrary to

JG's assertions, the record does not support that the court "completely disregarded" his

counsel's statement regarding his wishes. The record shows the court considered the

statement, but found the experienced social worker's assessment was better reasoned and

more credible.

We reach a similar conclusion regarding JG's argument the court erred because

Nicole—and not Mother—had provided the day-to-day care for JG during most of his life

and had a mother-son relationship with him. JG argues that the relevant issue for the trial

court's consideration was "whether his relationship with [Mother], as compared to his

relationship with Nicole, gives him the stability and security intended by the Legislature."

We disagree. The predicate issue for the court's determination under section 7822,

subdivision (a)(3) is whether the noncustodial parent abandoned the child and intended to

abandon the child. If there was no abandonment, the court must deny the petition to

terminate parental rights, regardless who is the "better" parent, the biological mother or

the stepmother. (See In re Bisenius (1959) 173 Cal.App.2d 518, 522.)

Finally, we note that the purpose of the section 7822 statutory scheme is to

provide children with stability and safety when those conditions "are otherwise missing

from the child's life." (§ 7800.) The evidence showed that JG is in a safe, stable, secure

environment, and will remain there. Father maintains sole legal and physical custody of

17
JG, and undoubtedly, JG will continue to have the benefit of his stepmother's loving and

highly-capable care. To the extent Father and Nicole believe that JG's continued

communications with Mother is not in his best interests, they may raise those issues in

family court custody proceedings.

DISPOSITION

Judgment affirmed.

HALLER, Acting P. J.

WE CONCUR:

MCDONALD, J.

AARON, J.

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