A California Appellate Court has ruled that the Trial Court did not make a mistake in terminating Father's parental rights in a step-parent adoption proceeding because there was sufficient evidence that Father had left the children in Mother's custody and control, without contacting them or providing for their support, for more than one year (as measured from the time that Mother assumed full custody). In the case of In re Marriage of D., Mother and Father married in 1991, and subsequently had three children in 1996, 1997 and 1999, respectively. In March of 2000, Mother filed for legal separation, asserting that in February of 2000, she had taken the children and moved to a domestic violence shelter because Father had become increasingly unstable and violent. Trial Court issued a Temporary Restraining Order against Father, barred him from having visitation with the children, and ordered him and Mother to participate in mediation with Mediator. Mother and Father later agreed that Father could have supervised visitation with the children beginning in April of 2000, plus twice-weekly telephone contact, if Mediator permitted it. Father also agreed to drug testing and individual counseling. In June of 2000, Mother and Father stipulated that Father could have visitation with Children supervised by Mother's parents. At the hearing on July 20, 2000, which Father did not attend, Trial Court heard testimony from Mediator, who voiced concern for Mother's safety because of Father's uncontrolled behavior. Trial Court suspended Father's visitation, ordered Father to pay child support, and issued permanent restraining orders protecting Mother and her parents. Trial Court also awarded Mother the sole legal and sole physical custody of the children, but did not order any visitation for Father. On August 23, 2000, Mother filed for divorce. The next day, Father filed a motion to set aside the restraining order, to reinstate the custody mediation, and to modify the child support order. Trial Court subsequently denied Father's motions, advising Father that it would not consider modifying visitation without written report from Mediator. Regardless of existing orders, Mother and Father later stipulated that he could have monitored visitation with the children between May 2000, and February 2001, to be monitored by either a professional organization, Mother's parents or Mother's brother. In June of 2001, a report submitted to Trial Court, Mediator stated that Father's visits were marred by his lack of emotional control and his insistence on discussing Mother and the divorce issues with Mother's parents instead of visiting with the children. Mediator reported that Father's behavior, possible drug use, and attempts to contact Mother were all causing great concern. Mediator also stated that despite having visitation schedule drawn up for him, Father did not contact or visit the children after February 2001. Mediator recommended that Trial Court require Father to undergo psychological evaluation, random drug tests, additional therapy, and anger management classes before permitting him to have any further contact with the children. At a hearing in July of 2001, Trial Court, per that recommendation, ordered Father to have psychological evaluation, testing, and anger management and individual therapy. Trial Court also ordered Father to keep it, Mediator, and Mother's attorney apprised of his current address and telephone number. In August of 2001, Father moved to Florida. He failed to attend the August 1, 2001, hearing on child support, custody and visitation. On September 24, 2001, in a Judgment on Reserved Issues, Trial Court awarded Mother the sole legal and sole physical custody of the children, confirmed prior visitation orders, renewed orders for Father to participate in psychological evaluation, psychological testing, random drug tests, anger management and individual counseling, and ordered Father to pay child support. Trial Court also continued its order to Father regarding notification of current address and telephone number. After that, Father's behavior was characterized by continued violations of the restraining order and sending of angry, threatening phone messages and emails to Mother. In July of 2003, Mother sought and obtained renewal of restraining orders. In subsequent proceedings, Father sought modification of custody and visitation orders, but Trail Court denied his motions after Father failed to provide proof that he had undergone psychological evaluation or drug testing or completed anger management course. On May 1, 2006, Mother and her current husband filed a petition to terminate Father's parental rights and request for step-parent adoption in Sacramento Trial Court. On May 23, 2006, Father filed another motion in Yolo County Trial Court, where all prior proceedings had taken place, seeking modification of custody and visitation orders, to which Trial Court responded as it had to his previous motions. Acting in the step-parent adoption matter, Sacramento Trial Court terminated Father's parental rights, but the California Court of Appeals reversed that decision on jurisdictional grounds. In February 2008, Mother filed a petition to terminate Father's parental rights and for step-parent adoption under California Family Code Section 7822 in Yolo County Trial Court, claiming that Father had abandoned the children by not visiting them since March of 2001, and by failing to support them. In opposition, Father denied leaving or intending to abandon the children and sought modification of visitation orders. Father attached to his pleadings a copy of the psychological report, certificate of completion of anger management course, bill for individual therapy sessions in May and June of 2000, some evidence of 2000 drug testing, and letter of enrollment in chemical dependency program in February 2004. Trial Court appointed counsel for the children and referred the case for evaluation and report by probation department. At trial, Father testified that he last visited the children in February of 2001, but had been prevented from further visitation by restraining orders and Mother's brother's refusal to talk to him and changing of phone number. Mother's brother testified that his relationship with Father started out friendly, but soured after Father persisted in discussing Mother instead of visiting with the children, was inconsistent in showing up for visits, and failed to follow up when contacted about visitation. Mother's brother stated that he had never prevented Father from visiting the children and had changed his phone number only after he had had no contact with Father for two years. Mediator testified about continuing concerns over Father's behavior and suspected drug use, his lack of follow-through with scheduled visitation, and his failure to comply with court-imposed requirements for visitation. Other evidence showed that Father was behind in his child support payments in the sum of $336,648, and except for one $75 payment, he had paid only through wage garnishments and levy on his bank accounts. Although Father claimed to be broke, tax returns showed that he earned more than $77,000 between 2001 and 2003, and other evidence showed that Father was selling welding equipment on cash basis. When trial concluded, the children's attorney urged Trial Court to terminate Father's parental rights on basis of his abandonment of the children and their best interests. Trial Court found that Father had left the children in Mother's custody and care in early 2001, and had failed to provide support or contact them for more than one year. Concluding that it would be in the children's best interests to terminate Father's parental rights, Trial Court made that order. Father appealed, but now the California Court of Appeals has affirmed the Trial Court's decision. The Appellate Court has ruled that (1) Trial Court correctly determined that the date from which to determine Father's abandonment of the children is the date when he voluntarily left the children in Mother's custody and control (not the date on which Mother left Father and moved to the shelter); (2) substantial evidence showed that Father, by his own actions, abandoned the children after February 2001; and (3) evidence of existing high child support arrearages is sufficient to establish that Father has failed to support the children (Mother's failure to insist on payment is irrelevant). Thus, the Appellate Court has held that Trial Court did not err in terminating Father's parental rights under California Family Code Section 7822.
Sign up to receive a 3-part series of useful information and advice about child custody law.