A recent appellate ruling on abandonment

Filed 7/15/04 In re K.S. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re K.S., a Minor. KEVIN S., Petitioner and Appellant, v. TORIE K. et al., Objectors and Respondents. D043525 (Super. Ct. No. A50668) APPEAL from a judgment of the Superior Court of San Diego County, Susan D. Huguenor, Judge. Affirmed. Kevin S. (Father) appeals the judgment declaring his minor daughter, K.S. (K.), free from his custody and control upon the petition of K.'s mother and stepfather, Kelly and Torie K. (Mother and Stepfather). (Fam. Code, ǧ 7820, 7822.) Father contends the court erred by finding that he was not a presumed father and the judgment is unsupported by substantial evidence. We affirm. PROCEDURAL BACKGROUND On October 10, 2003, Mother and Stepfather filed their petition alleging that Father had left K. in the care and custody of Mother and Stepfather for more than a year before the filing of the petition without any provision for her support, without any communication, and with the intent to abandon her, and that Stepfather wished to adopt. At the December 19 hearing, the court received into evidence, the freedom from custody and control report of the San Diego County Health and Human Services Agency and Mother, Father, and Father's mother testified. MOTHER'S EVIDENCE Mother and Father met in February 1995, when Mother's mother left San Diego and Mother went to live with Father, his grandmother, and Mother's brother. Mother soon became pregnant. During the pregnancy, Mother and Father lived together for three or four months with members of Father's family. They were with Father's grandmother for about one or two months, then lived with Father's uncle, and also stayed with Father's aunt. When Mother was about three or four months pregnant, she moved out and lived with her family and friends. Mother and Father's relationship continued for a short time, but ended that fall when she was seven months pregnant. Mother lived with family friends until K.'s birth. Mother and Father never married. K. was born in December 1995. Father was not present at the birth, but Mother informed him of the birth by telephone and he was named on the birth certificate. Father did not visit K. at the hospital but visited her eight days after she was born. Shortly after that visit, Mother and Father resumed their relationship, which continued off and on over the next several months. In the summer of 1996, when K. was about seven or eight months old, Mother, Father, and K. lived together for one week or less in a hotel while Mother was waiting for an apartment to become available. At the end of the week, Mother and K. moved into the apartment. Father did not join them. The relationship ended again that summer. After K. was born, Mother never lived with Father's grandmother. After this, Father visited K. sporadically, about once every two to three months. Their last contact was in April 1998. He never provided K. any financial support, other than a package of diapers in the summer of 1996 and other than paying for the hotel referred to above. He never sent her a card, letter, or gift or made telephone contact. Father knew that Mother was living on Peacock Street when K. was born. Mother lived there until K. was about seven or eight months old, then, as Father knew, obtained her own apartment on Bancroft Avenue. After Mother married Stepfather in May 1998, she continued living on Bancroft Avenue. Father knew of the marriage, but he did not know her new surname, and Mother did not know if Father knew that her husband was in the military. In July 1998, Mother moved to an apartment in El Cajon. Although Father did not know that address, she believed he knew that she was working at the Target store in El Cajon because Mother spoke to his aunt, with whom Mother and Father had lived, when the aunt came into the store. Mother worked at Target until around 2000. Father also knew her brother, who was living with her, and could have found out where she was living by asking her brother. Father and his family knew that Mother gave birth to a son in 1999 and that Mother's brother was murdered around Christmas that year. Mother moved to her present residence in July 2000. The last time Mother spoke to Father, in April 1998, she told him that she knew he did not love K. but that Stepfather loved K. and wanted to take care of her. Mother asked Father to "sign [his] papers over." Father replied that he did not love K. and did not "give a **** if she calls him daddy," but would "never sign the papers over." Mother never tried to hide from Father but did not take any steps to stay in communication with him or ask him for support after April 1998. Stepfather, who has been involved in K.'s life since she was two and one-half years old, is the only father she has ever known. FATHER'S EVIDENCE Father met Mother in 1995 or 1996. They lived together in 1995 or 1996 in his great grandmother's home for several months. He lived with Mother and K. at his grandmother's house, in motels, and at his father's home. Father saw K. "a lot" from the time of her birth until his first incarceration, which occurred "right after her birth." He was incarcerated in 1995, 1996, 1997, 1998, and 1999. His latest term began at the end of 1999, and at the time of trial in December 2003 he had been incarcerated for about four years. Father supported K. by providing "[a] lot of whatever she needed[:] Pampers, clothes, motel," and when Mother "was on welfare and her check went out," he "suppl[ied] motel rooms." Mother lied when she said that he had merely provided one package of Pampers. Father last visited K. at the end of 1997. His relationship with Mother ended in early 1998. She and K. "vanished" then and he did not know how to find them. Soon after this, he was incarcerated. He had not sent K. cards, gifts or letters, not knowing where to send them, and he acknowledged that he had not supported K. While Father was incarcerated, he had no means of supporting K. and could not mail her letters because he did not have her address. He never intended to abandon K. or not to support her. Mother lied when she said that he had stated he did not love K. and would not agree to adoption. He wanted to visit K., but did not know he could contact an attorney about going to court or that he could file papers and had not done so. He had not contacted the district attorney's office about trying to obtain visitation and did not know that he could talk to someone at the courthouse about trying to visit K. Before Mother's brother died in December 1999, Father and the brother had been friends but at some point drifted apart. Father had contact with the brother, but the brother never disclosed Mother's last name, where she was living, or her telephone number. Father did not ask the brother where Mother was and did not know whether Mother and her brother were in touch with one another. Father did not know of any other way to contact Mother. He did not know any other members of her family except her mother, who had gone to Washington D.C. He did not know that he could reach Mother at a Target store in El Cajon. Father's mother, Yolanda R. [Ms. R.] testified that Father provided support for K. when they stayed in the hotel and by paying the deposit on Mother's first apartment. Father had not been able to maintain a relationship with K. because Mother had left and they did not know how to get in touch with her. Mother and K. had stayed with Ms. R.'s mother "off and on when they [were] in the hotels," when [K.] was about seven or eight months old. Ms. R. last had contact with K. when Ms. R. was released from custody and K. was two years old and last saw Mother at Halloween 1997. To Ms. R.'s knowledge, Father never expressed an intent to abandon K. or said he did not love her; indeed, he wanted to see her. Ms. R. had been incarcerated until K. was two years old; while she was incarcerated she was unable to send K. anything because she had nothing. PRESUMED FATHER STATUS The court found that Father was an alleged father but not a presumed father. Father contends this was error because "[h]e receive[d K.] into his home and openly [held her] out as his natural child." ( 7611, subd. (d).) He had the burden of proof on this issue. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585-586.) As to the first requirement, he asserts that when K. was about seven months old, he paid for a motel room where he lived with K. and Mother. As to the second requirement, he asserts that he explicitly stated that he was K.'s father; he supported Mother while she was pregnant and after K. was born; he provided them both with housing; he visited K. approximately every two to three months during the first two years of her life; and K.'s paternal grandmother was informed that K. was her granddaughter and acted as a grandmother. The evidence does not establish that Father took K. into his home. Thus, he was merely an alleged father (In re Zacharia D. (1993) 6 Cal.4th 435, 449 fn. 15) and his consent was not required for an adoption (ǧ 8605). Therefore the only issue from an evidentiary standpoint was K.'s best interest. (In re Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) It is undisputed that it was in her best interest to be freed from Father's custody and control so she could be adopted. ABANDONMENT Even though it is not necessary to prove abandonment by an alleged father, substantial evidence supports the abandonment finding here. The court found that Father had abandoned K., that is, that "[there had] been insufficient contact and support in excess of the time frames that are allowable." Section 7822 provides in pertinent part: "(a) A proceeding under this part may be brought where the child has been left . . . by one parent 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. "(b) 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 . . . ." Section 7822 "shall be liberally construed to protect the interests and welfare of the child." (In re Daniel M. (1993) 16 Cal.App.4th 878, 884.) It requires only an intent to abandon the child for one year, not an intent to abandon her permanently. (Id. at pp. 881-883.) The existence of a subjective intent is a question of fact for the trial court, determined from an objective assessment of the parent's conduct, as opposed to his stated desire. (In re Brittany H. (1988) 198 Cal.App.3d 533, 550.) When the evidence shows only token efforts to communicate with the child, abandonment is presumed. In determining intent to abandon, the trial court considers the number and frequency of the efforts to communicate, the genuineness of those efforts, and the quality of the communication that results. (In re B.J.B. (1986) 185 Cal.App.3d 1201, 1212.) While failure to support, absent a demand or showing of ability, does not prove intent to abandon (In re Adoption of R.R.R. (1971) 18 Cal.App.3d 973, 981), failure to support coupled with failure to communicate may do so (In re Conrich (1963) 221 Cal.App.2d 662, 667). Similarly, failure to communicate with the child for a year may deprive a parent of the right to object to an adoption if an ability to communicate is shown. (In re Morrow (1970) 9 Cal.App.3d 39, 53, disapproved on other grounds in Hollister Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 661.) The court must find intent to abandon by clear and convincing evidence. (In re B.J.B., supra, 185 Cal.App.3d at p. 1211.) We determine whether substantial evidence supports the trial court's conclusions. (Ibid.; In re Gano (1958) 160 Cal.App.2d 700, 705.) K. was born in December 1995. Father stopped visiting her in early 1998 after a history of sporadic visits every two to three months. He provided virtually no support during the first year of her life and absolutely none after that. He was in and out of custody until the end of 1999 yet made no attempt to locate Mother and K. after April 1998. This is not a case of a mother deliberately concealing her whereabouts. Father had ample means of locating her and made no effort to do so. There was clear and convincing evidence of an intent to abandon for at least a year before Father's latest incarceration at the end of 1999. DISPOSITION Judgment affirmed. McCONNELL, P. J. WE CONCUR: McDONALD, J. IRION, J.