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Name: In re Aubrey T.
Case #: B296810
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 03/23/2020

Termination of father’s parental rights under Family Code Section 7822 was reversed where there was insufficient evidence that he intended to abandon the minor. Anthony was the biological father of Aubrey, who was born in 2011. He had been in an on-again-off-again relationship with mother for four years. He lived with mother during the pregnancy, but mother moved out just prior to the birth to live with great grandparents. Anthony was present at the birth but was not named as the child’s father on the birth certificate. Mother and Aubrey subsequently moved in with Anthony and they married. While living with Anthony, there were periods when mother took Aubrey to live with her at the great grandparents’ house. Mother said that Anthony had substance abuse and domestic violence issues. When Aubrey was three, mother separated from Anthony, got a restraining order, and moved in with great grandparents. All of Anthony’s contacts with Aubrey were facilitated by mother; he had no communication with the great grandparents. After mother disappeared for a period of time, Anthony went to the great grandparents’ house with a police officer in an attempt to see Aubrey. The great grandparents said that he was not named as the father, and would need a paternity test in order to see Aubrey. Anthony subsequently sought custody of Aubrey in family court. Mother opposed the request, quit communicating with Anthony, and in a declaration claimed that Anthony had provided no financial support and had not attempted to visit Aubrey for two years. Great grandparents subsequently filed a petition to be appointed Aubrey’s guardians in probate court. Mother consented to the guardianship. The probate court denied the ex parte petition and ordered the matter suspended pending the family law custody proceeding. Great grandparents then filed a request for sole custody of Aubrey. Anthony filed a request for temporary custody of Aubrey. Mother filed a petition to terminate Anthony’s parental rights so that Aubrey could be freed for adoption by the great grandparents. Following a contested hearing on the petition, the juvenile court terminated Anthony’s parental rights over Aubrey on the grounds of abandonment within the meaning of Family Code section 7822. The juvenile court focused its decision on the period of time between November 2014 and November 2015 when Anthony was only visiting when mother arranged it for him. It also concluded that it was in Aubrey’s best interest to be adopted by her great grandparents, who were the people Aubrey recognized as her parents. On appeal, Anthony argued there was no substantial evidence to support the finding that he abandoned Aubrey within the meaning of section 7822. The appellate court agreed and reversed the order terminating Anthony’s parental rights. Anthony presented evidence of photographs from his time visiting Aubrey, and e-mail and text messages showing that he asked about additional visitation. During the time when mother went missing, Anthony attempted to see Aubrey but the great grandparents refused. By presenting evidence that he did not intend to abandon Aubrey, Anthony overcame the presumption of intent to abandon which arose from his failure to financially support her. The record contains no evidence from which one could reasonably infer that Anthony intended to abandon Aubrey. The evidence showed that Anthony repeatedly made efforts to communicate with Aubrey during the time period in question, and had a legitimate reason to not communicate directly with the great grandparents.

The full opinion is available on the court’s website here: