Adoption of Allison C.
79 Cal.Rptr.3d 743, 164 Cal. App. 4th 1004 (2008)
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Rule of Law:
A parent's voluntary acts, including those leading to incarceration, which result in leaving a child in another's care without substantial support or communication for at least one year, can constitute an intent to abandon the child under Family Code section 7822, thereby allowing for termination of parental rights, even if the parent claims no permanent intent to abandon.
Facts:
- Allison C. was conceived while her mother (Mother) was dating John C. (father) and married to his brother.
- After Allison C.'s birth in March 2001, Mother and Allison C. lived with John C. intermittently for about 110 days during the child's first six months of life.
- In summer 2001, John C. struck Mother while she was holding Allison C., causing Mother to move out with Allison C. and cease contact with John C.
- From October 2001 through February 2003, John C. was incarcerated for domestic violence.
- Upon his release in February 2003, John C. secretly visited Allison C. at his brother's house every weekend until September 2003, when Mother discovered the visits and restricted them.
- Starting in September 2003, John C. was incarcerated for second degree burglary and remained so until July 2005.
- Dario A. (stepfather) became involved in Allison C.'s life in early 2003 and married Mother in February 2005.
- John C. was incarcerated for violating parole from May to September 2006, and for driving under the influence of alcohol from October 2006 to April 2007.
Procedural Posture:
- In April 2005, Dario A. (stepfather) filed a request with the court to adopt Allison C.
- In August 2005, the court issued a restraining order against John C. (father) to protect Mother and Allison C., which allowed John C. supervised visitation for two hours every Saturday commencing in September 2005.
- In August 2005, John C.'s parole officer prohibited him from seeing Allison C., though it allowed contact by telephone or mail with prior approval.
- In September 2005, Dario A. and Mother petitioned the court under Family Code section 7662 for a determination of John C.'s parental rights over Allison C., asking whether his consent was necessary for the adoption.
- The court found John C. to be Allison C.'s presumed father under section 7611, subdivision (d).
- In October 2006, Dario A. petitioned the court to declare Allison C. free from John C.'s parental custody and control under section 7822 (parental abandonment) or section 7825 (parent convicted of a felony).
- In July 2007, a hearing was held on Dario A.'s petition under section 7822.
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Issue:
Does a father's voluntary actions leading to repeated incarcerations, combined with a failure to provide adequate support or consistent communication with his child for a period exceeding one year, establish an intent to abandon the child under Family Code section 7822, despite the father's claim that he did not intend to permanently abandon the child?
Opinions:
Majority - IKOLA, J.
Yes, a father's voluntary actions leading to repeated incarcerations, combined with a failure to provide adequate support or consistent communication with his child for a period exceeding one year, does establish an intent to abandon the child under Family Code section 7822. The court affirmed the trial court's judgment terminating John C.'s parental rights, finding substantial evidence supported the finding of abandonment. The court found John C. voluntarily left Allison C. in Mother's care through his act of domestic violence in 2001, and subsequently never sought to take parental responsibility. His numerous incarcerations, resulting from his own voluntary actions, do not constitute a legal defense to abandonment, as case law emphasizes the voluntary nature of abandoning the parental role, not merely physical desertion. The court also found substantial evidence that John C. failed to support or communicate with Allison C. for the statutory period (September 2003 to December 2006), noting his token efforts at support ($1,100 over three years) were de minimis and his communication efforts were inadequate. The court clarified that the "intent to abandon" required by section 7822 refers to an intent to abandon for the statutory one-year period, not a permanent intent to sever ties, consistent with In re Daniel M. This interpretation prioritizes the child's best interests by providing the stability of an adoptive home, as childhood is brief and cannot wait for a parent's indefinite future rehabilitation. The combined failure of support and communication for the statutory period created a presumption of intent to abandon, which John C. did not effectively rebut, especially given his failure to seek approval for contact while on parole.
Analysis:
This case significantly clarifies the interpretation of "intent to abandon" under California Family Code section 7822, particularly concerning parents with a history of incarceration. It establishes that a parent's voluntary criminal acts leading to imprisonment do not excuse their failure to provide support or communication, and these circumstances can contribute to a finding of abandonment. The ruling reinforces that the required intent is for the statutory period of abandonment, prioritizing the child's immediate need for a stable and permanent home over a parent's abstract or distant intention to eventually resume their parental role. This decision makes it more difficult for habitually incarcerated parents to block adoptions by asserting a long-term, non-specific intent to parent, thereby promoting the child's welfare as the paramount consideration.
