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Name: In re H.D.
Case #: E070576
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/08/2019

Where mother let father have custody of minors while she worked on her substance abuse problems, there was insufficient evidence that she intended to abandon the minors within the meaning of the statute, and parental rights termination was reversed. Mother and father were married for three years and had two daughters together. After they divorced, the court awarded primary custody to mother with visits to father. Father remarried, and the girls lived with father and stepmother for a month while mother participated in alcohol treatment. Mother and father agreed to a shared custody arrangement thereafter. In 2016, father suspected mother was using drugs and sought an order granting him temporary sole custody. Mother agreed she was using methamphetamine and agreed to the amended custody order. Mother repeatedly tried to visit or speak with the girls, but father refused to allow contact on a therapist’s advice. At a subsequent hearing, mother stipulated to father having sole custody with supervised visitation for her if she tested negative for drugs. For the next year, mother underwent treatment for alcohol and methamphetamine addiction. When she finished the rehabilitation, she filed a request to modify the custody order, seeking shared custody. Two weeks later, stepmother filed petitions to free the girls from mother’s custody and control under Family Code section 7822, so she could adopt them. Mother opposed the petitions and explained her recent absence from the girls’ lives: she had never intended to abandon them; she had agreed to the custody orders because she believed that she could regain custody when she got clean. She had been sober for 14 months and was trying to reunify with her daughters in family court. She wanted to be sure she could maintain sobriety before coming back to court to reestablish her parental rights. The trial court concluded that mother had abandoned her daughters within the meaning of section 7822, subdivision (a)(3) and terminated her parental rights. On appeal, mother argued that the record contained insufficient evidence that she “left” her daughters with the intent to abandon them. The appellate court agreed and reversed the order. The record does not support a finding that mother voluntarily relinquished her parental role. Instead, it suggests she temporarily suspended her parental duties to address the obstacles to her ability to fulfill her role as mother. Further, the record contains uncontradicted evidence that mother never intended to abandon her daughters. After becoming and remaining sober, mother immediately returned to family court to regain custody. Mother’s attempts to contact her daughters, her diligence in treating her addictions, her attempt to regain custody in family court, and her payment of support when she was able preclude a finding of abandonment.