In re E.O.

In re E.O., a Minor.

M.M. et al., Petitioners and Respondents, v. G.O., Objector and Respondent.

2d Juv. No. B305954

California Court of Appeals, Second District, Sixth Division

July 22, 2021

NOT TO BE PUBLISHED

Superior Court County of San Luis Obispo No. 18AD-0088 Tana L. Coates, Judge

Hosford & Hosford, Inc. and Valerie Ryall Hosford for Petitioners and Appellants.

Barnick|Hodges Law Corporation and Whitney Northington Barnick for Objector and Respondent.

GILBERT, P. J.

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] 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 7822^[2] 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 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 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, 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 [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 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...