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Parental Rights of Father Terminated for Abandonment

Posted By Anthony P. Azemika, Esq.   |   Comments (0)
Family Law, Adoption, Child Custody & Visitation, Legal Cases,

 

 

In the case of In re A.B., Mother and Father met in November of 2005. They lived together for four years, during which Father used both alcohol and pot. When Mother learned that she was pregnant, she broke up with Father and moved out. In November of 2009, Mother gave birth to their Child. Father was not present for Child’s birth, but arrived three hours later with a pizza and a request to hold Child. Father was not named as Child’s father on Child’s birth certificate.

After Child’s birth, Father tried to give Mother a $50 money order, and to buy baby food, but Mother rejected both offers. After that, Father did not see Mother and Child until January of 2010, when he spent two hours with them. Soon thereafter, Mother contacted the Department of Child Support Services, seeking to have Father pay child support. In September of 2010, after a paternity test determined that Father was Child’s biological father, Trial Court issued a child support order, which Father paid consistently through wage garnishment. However, Father did not obtain the health insurance for Child that Trial Court also ordered. Meanwhile, Father occasionally attempted to see Mother and Child, but was unsuccessful. Father obtained the necessary forms to seek a Trial Court visitation order, but never followed through, apparently because he lacked the $400 filing fee.

In April of 2013, Mother began dating Husband. A few months later, Husband “became involved in [Child’s] care,” and later began supporting Mother and Child financially. Child called Husband “Daddy” and “became very bonded to him.” Mother and Child moved in with Husband in the fall of 2014, and Mother and Husband subsequently married. Meanwhile, after Mother had a “falling out” with her family, Father sent Mother a letter in which he told her that he would seek visitation with Child by the time Child turned five.

In October of 2014, Father filed a request for visitation, claiming that he had cleaned up his act and wanted to develop a parental relationship with Child. Father also contended that Mother should permit Child’s Grandmother to visit Child and to let him visit with Child at Grandmother’s house. After Mother and Father participated in mediation, Trial Court ordered a therapist to monitor Father’s introduction to and visitation with Child. During several therapy sessions, Father and Child developed a minimal relationship.

In March of 2015, Husband filed a petition to terminate Father’s parental rights and to adopt Child. Father reluctantly met with a Social Worker, who recommended against termination of his parental rights after concluding that Father had no intent to abandon Child and had not done so. However, at the hearing on Husband’s petition, Social Worker testified that during Father’s lengthy absence from Child’s life, Husband had stepped in to provide stability and continuity for Child, specifically during the past two years. Social Worker also saw a connection between Father’s request for visitation and Mother’s failed relationship with Grandmother. Father and Mother’s family members testified about Father’s many unsuccessful attempts to contact Mother by letter and phone. Mother testified that Father called her periodically, but never asked for visitation, and admitted changing her phone number, but leaving her old voice mail. Mother said she did not return many of Father’s messages because she didn’t want to encourage Father to hope for resumption of their relationship. When the hearing concluded, Trial Court found that Mother was the more credible party, Father’s testimony suggested that he did not show any active interest in visiting Child before 2014, Father failed to have meaningful contact with Child for a period of more than one year and paid only sporadic support, and Child’s relationship with Husband supported a finding that adoption would be in Child’s best interests. Claiming, among other things, that Trial Court should have considered only the preceding year in determining whether Father abandoned Child, Father appealed, but a California Court of Appeals has reaffirmed Trial Court’s decision.

The Appellate Court has ruled that (1) as pertinent here, California Family Code Section 7822(a)(3) provides that a Trial Court may terminate the parental rights of a parent who has left his or her child in the other parent’s custody for a period of one year without communication and with the intent to abandon the child; (2) neither that statute nor the applicable case law provides that the one-year period has to be the year immediately preceding the filing of the California Family Code Section 7822 petition; (3) Father’s failure to make more that token efforts to communicate with Child for well over the one year period support Trial Court’s finding of abandonment (need not be evidence of intent to totally abandon Child); (4) there is substantial evidence that Husband’s adoption of Child would be in Child’s best interests; and (5) Trial Court’s finding that Indian Child Welfare Act did not apply in this case is not supported where one tribe out of four tribes who were contacted failed to respond until after termination judgment, but that error is harmless because there is no reasonable probability of a more favorable result.

 

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