Filed 7/22/21 In re E.O. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re E.O., a Minor. 2d Juv. No. B305954
(Super. Ct. No. 18AD-0088)
(San Luis Obispo County)
M.M. et al.,
Petitioners and Respondents,
v.
G.O.,
Objector and Respondent.
A.M. (Mother) and M.M. (Stepfather) appeal a judgment of
the family law court denying their amended petition to terminate
the parental rights of G.O., the biological father of E.O. (Father).1
To preserve family confidentiality and to ease the reader’s
1
task, we refer to A.M. as “Mother,” G.O. as “Father,” and M.M. as
“Stepfather.” At times we refer to A.M. and M.M. collectively as
“the M.s.”
They also appeal the denial of their motion for a new trial or
reconsideration.
This appeal concerns an amended petition to terminate
parental rights and a petition to allow adoption by a child’s
stepfather. Mother and Stepfather claim that Father abandoned
the child pursuant to Family Code section 78222 and that Father
is an unfit parent pursuant to section 7825. The family law court
denied the petition based in part upon findings of credibility and
weight of the evidence. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father married in 2012 and E.O. was born the
following year. Six months following E.O.’s birth, the parties
separated, and Mother later filed a petition to dissolve the
marriage. On April 17, 2015, the family law court entered a
stipulated judgment of dissolution allowing Father visitation on
Fridays through Sundays, and ordering monthly child support
payments of $500. The stipulated judgment awarded the parties
joint legal and physical custody.
At trial regarding the termination petition, Father testified
that he was present at E.O.’s birth and thereafter actively
involved as a parent. Father visited with E.O. as allowed,
sometimes staying with or visiting together with E.O.’s paternal
grandparents.
On June 17, 2015, Father was arrested for felony
possession for sale of methamphetamine, heroin, and marijuana.
He was released from custody the following day. On July 13,
2015, Father again was arrested for felony possession of illegal
drugs for sale, committing a felony while on bail, and destroying
2All statutory references are to the Family Code unless
otherwise stated.
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evidence. He was released from custody the following day. On
July 21, 2015, Mother filed a request for sole physical and legal
custody of E.O. and supervised visitation to Father. The family
law court later granted Mother’s request; Father did not attend
the hearing because he was incarcerated.
From June to August 2015, for several nights in total,
Father visited with E.O. at the grandparents’ home. On August
21, 2015, Father was again arrested for felony possession for sale
of methamphetamine and heroin, among other charges. He then
pleaded nolo contendere to four counts of possession of illegal
drugs for sale, and the commission of a felony while on bail. As a
result, Father was incarcerated from August 21, 2015, until July
19, 2016, for a total of 331 days. During Father’s incarceration,
Mother and Stepfather married.
While incarcerated, Father sent E.O. approximately a
dozen letters and cards, including a birthday card and a
Christmas card. At trial, Mother disputed the number of written
communications, testifying there were only one or two. Father
also telephoned E.O. weekly or more often with collect calls from
jail. On one occasion, the M.s brought E.O. to visit Father while
he was incarcerated at the Honor Farm.
Father and Mother later ceased communication during
Father’s incarceration when he successfully sought to
temporarily suspend child support payments. Mother refused
Father’s telephone calls. In November 2015, Father filed a
request for an order that his parents accompany E.O. to the
Honor Farm for visitation. The family law court denied his
request.
Father was released from incarceration on July 19, 2016,
and within 24 hours, contacted Mother to arrange a visit with
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E.O. Thereafter, Father, by his count, visited E.O. “one to three
times a week,” including E.O.’s birthday and Christmas. On
January 20, 2017, Father was arrested again for violating the
terms of his probation by a positive drug test. Father was
released from custody on February 1, 2017, and contacted Mother
to visit E.O. Mother advised him that “for the immediate future,
they were against [him] having any visits and needed to see [him]
do well for a while before they would.” Thus, the last time Father
visited with E.O. was in January 2017.
Father was again arrested on March 26, 2017, for sale of a
controlled substance and a probation violation (missing curfew in
his sober living home). He was released on May 1, 2017,
following his admission to the probation violation. Mother did
not allow visitation with E.O. and, for this reason, Father sought
a court order permitting visitation. The parties attended
mediation but could not reach an agreement. The family law
court later ordered reunification therapy and telephone contact
as the therapist deemed advisable. The therapy never occurred
due to Father’s later incarceration.
On December 13, 2017, Father was arrested again for two
counts of probation violations, including a positive drug test. He
was incarcerated until September 25, 2018, and then placed on
parole until December 9, 2018. During his incarceration, Father
testified that his telephone calls to E.O. were not answered.
Father mailed several letters to E.O., but they were returned.
The family law court vacated the trial date regarding visitation
and reunification.
Following his September 2018 release from jail, Father
began working at his former construction employment and sent
child support to Mother. Several weeks prior to Father’s release,
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M.M. filed a petition to terminate his parental rights pursuant to
sections 7822, subdivision (a)(3) [intent to abandon] or section
7825, subdivision (a) [parent is habitual criminal]. M.M. later
filed an amended petition that included Mother as a petitioner.
Except during his incarceration periods, Father generally
paid child support to Mother and provided evidentiary proof of
the payments. At trial, the M.s agreed but did not recall how
many payments they received. In 2018 and 2019, Mother did not
negotiate the child support checks, approximately $6,000.
At trial, Father testified that his sobriety date was January
23, 2018. He also stated that he completed a court-ordered drug
and alcohol program. Father acknowledged that he has made
“tremendous mistakes [that have caused] a great deal of pain and
inconvenience” to the M.s and E.O. Father also testified that he
never intended to abandon E.O. and that he accepted and
appreciated that E.O. looked upon the M.s as her mother and
father.
On December 4, 2019, the family law court filed a lengthy
statement of decision denying the M.s’ petition. The court
expressly found Father’s testimony credible and his child support
payments, contacts, and attempted contacts with E.O. more than
“token” efforts. The court concluded that the M.s failed to prove
with clear and convincing evidence that Father intended to
abandon E.O. The court also considered Father’s lengthy
criminal history (since 2003) and concluded that the facts of
Father’s drug crimes do not warrant termination of his parental
rights.3 (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1531
3 The family law court stated that “[a]t the time of [E.O.’s]
birth, [Father] had struggled for years with addiction, which
5
[section 7825 traditionally limited to situations where parent
commits a heinous felony offense].) The court expressly found
Father’s testimony credible regarding his addiction recovery
efforts.
New Trial Motion
On January 16, 2020, the M.s moved for a new trial based
on several grounds, including newly discovered evidence that
Father was recently arrested for felony possession of
methamphetamine, cocaine, heroin, and oxycodone for sale. The
new arrest occurred 17 days following the family law court’s final
statement of decision in which Father prevailed.
The M.s appeal and contend that the family law court erred
by concluding that: 1) Father did not have the requisite intent to
abandon E.O.; 2) Father’s four felony convictions for illegal drug
possession do not fall within the meaning or spirit of section
7825. The M.s also argue that the court abused its discretion by
failing to grant a new trial or reopen the evidence to permit
evidence that Father was rearrested post-trial for illegal drug
possession on December 21, 2019. The M.s also point out that the
judgment incorporating the statement of decision does not
consider and discuss the best interests of E.O. (§§ 7800, 7801.)
DISCUSSION
I.
The M.s argue that sufficient evidence supports Father’s
intent to abandon E.O. pursuant to section 7822. In part, they
rely upon the January 2017 through December 2018 period when
they did not permit Father to visit E.O. The M.s point out that
Father has been incarcerated for approximately 38 percent of
spawned criminal behavior, as well as multiple periods of
incarceration.”
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E.O.’s young life, and assert that his sporadic contacts with her
are token efforts that confuse her. They add that E.O. has a
constitutional right to a stable and secure home with parents to
whom she is bonded.
A reviewing court applies the substantial evidence
standard of review to the trial court’s findings pursuant to section
7822. (Adoption of Allison C. (2008) 164 Cal.Ap.4th 1004, 1010.)
We resolve all evidentiary conflicts and draw all reasonable
inferences in favor of the judgment. (Id. at pp. 1010-1011.)
Witness credibility is the province of the trial court. (Id. at
p. 1015, fn. 9.) Appellant bears the burden of establishing that
the finding or order is not supported by substantial evidence. (Id.
at p. 1011.)
Section 7822, subdivision (a)(3) permits a finding of child
abandonment if a parent has left a child in the care and custody
of the other parent for a period of one year without any provision
for support or without communication from the parent “with the
intent on the part of the parent to abandon the child.” The
failure to provide support or to communicate is presumptive
evidence of intent to abandon. (Id., subd. (b).) “ ‘ “ ‘In order to
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 same.’ ” ’ ” (In re E.M. (2014) 228
Cal.App.4th 828, 839.) A finding of abandonment, however, may
also rest upon mere “token” efforts to support or communicate.
(Adoption of Allison C., supra, 164 Cal.App.4th 1004, 1010.)
Intent to abandon must be proven by clear and convincing
evidence. (§ 7821; In re Aubrey T. (2020) 48 Cal.App.5th 316,
326.)
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The family law court assumed, but did not decide, that
Father left E.O. for the statutory one-year period. The court then
decided that Father, by his frequent child support payments and
communications with E.O., did not intend to abandon her. The
court’s decision rests upon sufficient evidence. (In re E.M., supra,
228 Cal.App.4th 828, 839 [intent to abandon is a factual
question].) The M.s have not met their burden of proof by clear
and convincing evidence that Father intended to abandon E.O.
During his incarceration in 2015, Father made many collect
telephone calls to E.O. from jail. He also requested and received
a visit from E.O. and the M.s while confined at the Honor Farm.
Within 24 hours of his July 2016 release from custody, he
contacted the M.s to visit E.O. During the next six months,
Father visited E.O. every week, including her birthday and
Christmas. In January 2017, when Father was again arrested,
the M.s decided to stop visitation until Father was rehabilitated.
(In re H.D. (2019) 35 Cal.App.5th 42, 52-53 [custodial parent’s
refusal to allow visitation precludes inference other parent chose
not to contact or communicate with child].) Thereafter, Father
sent letters which were returned and made telephone calls that
were unanswered.
Father has also made many child support payments except
during times of incarceration. At the time of trial, the M.s were
holding approximately $6,000 in child support checks that they
did not negotiate.
In November 2015, and again in May 2017, Father filed
petitions in the family law court seeking visitation with E.O.
Father engaged in mediation in 2017 and agreed to reunification
therapy. As the court found, Father’s efforts at support and
communication were “not merely ‘token’ efforts.”
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It is well settled that parental rights cannot be terminated
absent a showing of unfitness. (Adoption of Kelsey S. (1992) 1
Cal.4th 816, 821.) Terminating parental rights based solely on a
best interest test would permit a parent’s rights to be terminated
based upon a “better” adoptive parent. (Id. at p. 846.) “Absent
intent on the part of the parents 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.)
II.
The M.s assert that the family law court abused its
discretion by not terminating Father’s parental rights pursuant
to section 7825. They point out that Father pleaded nolo
contendere to possession of a dirk or dagger, among other
charges, when he was arrested in August 2015 for illegal drug
possession and sale. The M.s add that drug sales sometimes
involve weapons and violence.
Section 7825, subdivision (a) permits a proceeding to
terminate parental rights where: “(1) the child is one whose
parent or parents are convicted of a felony. [¶] (2) The facts of
the crime of which the parent or parents were convicted are of
such a nature so as to prove the unfitness of the parent or
parents to have the future custody and control of the child. In
making a determination pursuant to this section, the court may
consider the parent’s criminal record prior to the felony
conviction to the extent that the criminal record demonstrates a
pattern of behavior substantially related to the welfare of the
child or the parent’s ability to exercise custody and control
regarding the child.”
“In accordance with this statutory language, and the fact
that the involuntary termination of parental rights is an extreme
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measure implicating core constitutional rights, section 7825’s
reach traditionally has been limited to those situations where a
parent commits a heinous felony offense, often against a family
member, which in and of itself demonstrates that the parent will
be forever unfit to have any measure of custody of his or her
children.” (In re Baby Girl M., supra, 135 Cal.App.4th 1528,
1531.) Parental unfitness must be demonstrated by the facts
underlying a felony conviction. (Id. at p. 1539.) Permanently
terminating parental rights is “ ‘a drastic remedy to be resorted
to only in extreme cases.’ ” (Id. at p. 1535.) The trial court’s
decision must rest upon clear and convincing evidence and is
reviewed for an abuse of discretion. (Id. at pp. 1535-1536.)
Here the family law court expressly considered Father’s
criminal history as presented in an investigative report reciting
Father’s misdemeanor and felony convictions since 2003. The
court also considered Father’s gainful employment, then-sobriety,
participation in AA and NA meetings, successful random drug
testing, and completion of a drug and alcohol program. Father
testified that “addiction is a disease” that has “caused
tremendous turmoil” in his life, and that he has decided “to fight”
the disease by daily efforts. The court noted that there was no
evidence that Father was under the influence of drugs while
caring for E.O. or that he sold illegal drugs in her presence.
The family law court expressly found Father’s testimony
credible regarding his recovery efforts, and based upon “the
totality of the evidence presented,” it declined to terminate
Father’s parental rights. The M.s have not established that this
decision was an abuse of the court’s discretion.
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III.
The M.s argue that the family law court abused its
discretion by denying their motion for a new trial based upon
newly discovered evidence. (Code Civ. Proc., § 657, subd. 4.)
They point out that Father was arrested on illegal drug charges
approximately two weeks following the final statement of
decision.
The M.s filed a motion for new trial based upon numerous
grounds, including newly discovered evidence, as well as a motion
for reconsideration. The family law court denied the motion for
new trial and the motion to reopen the evidence.
The family law court did not abuse its discretion by denying
the new trial motion because the evidence was not newly
discovered evidence. To be “newly discovered,” the evidence must
have been in existence at the time of trial. (Aron v. WIB
Holdings (2018) 21 Cal.App.5th 1069, 1079.) “Implicit in that
term is the concept that the evidence existed, but remained
undiscovered at the time of trial.” (Ibid.) Father’s recent arrest
occurred three months following the close of evidence at trial.
Moreover, the evidence concerned an arrest, not a felony
conviction as required by section 7825.
The family law court also did not abuse its discretion by
declining to reconsider or reopen the taking of evidence. The
court’s ruling thereon stated that evidence of the most recent
arrest was cumulative and would not change the court’s decision,
among other reasons.
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DISPOSITION
The orders are affirmed. Appellants are to bear costs.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Hosford & Hosford, Inc. and Valerie Ryall Hosford for
Petitioners and Appellants.
Barnick|Hodges Law Corporation and Whitney
Northington Barnick for Objector and Respondent.
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