Family Law Attorney in California

IN RE JACKLYN F., a Minor. HARVEY F. et al., Petitioners and Respondents, v. NOEL B.,
COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT

Respondent grandparents were granted guardianship of their granddaughter. The parents filed the guardianship petition after the mother had left her minor child with them for three days. The mother objected. The grandparents then obtained a restraining order against the mother that limited her contacts to peaceful ones provided under a visitation order in the guardianship proceedings. Several years later, the Superior Court of Placer County (California) granted the grandparents’ petition to terminate appellant mother’s parental rights based on abandonment under Cal. Fam. Code §§ 7820 and 7822 and Cal. R. Ct. 38.1A(a). The mother appeals from the trial court’s order granting a petition filed by the grandparents to terminate mother’s parental rights based on abandonment. The mother appealed.

ISSUES:

Whether the minor was “left” within the meaning of the ‘Abandonment’ statute?

DISCUSSION:

Section 7822 provides: that a proceeding under this part may be brought where the child has been left by both parents or the sole parent in the care and custody of another for a period of six months … without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child. The failure to provide support or failure to communicate is presumptive evidence of the intent to abandon. If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent or parents.  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.  Accordingly, the statute contemplates that abandonment is established only when there is a physical act—leaving the child for the prescribed period of time—combined with intent to abandon, which may be presumed from a lack of communication or support. The elements of abandonment for purposes of section 7822 are delineated as follows: (1) the child must be “left” by a parent in the care and custody of another person for a period of six months; (2) the child must be left without any provision for support or without communication from the parent; and (3) the parent must have acted with the intent to abandon the child.  Where the care and custody of the child is taken away from the parent by order of the court without the consent of the parent, there is no abandonment.  The fact that a parent has not communicated with a child for a period of six months or that the parent intended to abandon the child does not become material under section 7822 unless the parent has “left” the child.  Section 7822, subdivision (b), states that the failure to communicate with or support a child is presumptive evidence of the intent to abandon. However, intent is only one of the statutory elements that must be proved to establish abandonment.  When the grandparents filed the petition for guardianship, the minor had been left in their care for only three days. Just over a month later, appellant was present at the hearing on the grandparents’ petition for guardianship, and she contested the petition. She also filed an opposition to the guardianship petition, seeking return of the minor to her custody.  Appellant contested the grandparents’ efforts to secure a court order taking custody of the minor from her. Once the guardianship was granted, appellant was no longer legally entitled to custody of the minor without further court order. At such point, the minor’s custody status became a matter of judicial decree, not abandonment.  The Court concluded that appellant’s conduct following the granting of the guardianship—which included sending “stacks” of letters to the minor but failing to visit her—did not constitute “parental non-action” amounting to a leaving. “Parental nonaction” must involve more than merely failing to communicate in order to give meaning to the statutory language requiring that the minor be “left.” Consequently, the Court concluded that there is insufficient evidence in this case to support a finding that appellant “left” the minor for the requisite time period.

JUDGMENT:

The court reversed the order terminating parental rights.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.