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In re Marriage of Jill

June 9, 2010

IN RE THE MARRIAGE OF JILL AND VICTOR D.
JILL D., RESPONDENT,
v.
VICTOR D., APPELLANT.
IN RE L.D. ET AL., MINORS.
JILL D., PETITIONER AND RESPONDENT,
v.
VICTOR D., OBJECTOR AND APPELLANT.



APPEAL from a judgment of the Superior Court of Yolo County, Kathleen M. White, Judge. Affirmed. (Super. Ct. Nos. CVFL00643 & CVFL081010).

The opinion of the court was delivered by: Scotland, P. J.,

CERTIFIED FOR PUBLICATION

Victor D. (father), the biological father of three children (the minors), appeals from orders (the judgment) terminating his parental rights so the minors could be adopted by their stepfather. (Fam. Code, §§ 7820.) Father contends the judgment must be reversed because, in his view, the evidence was insufficient to establish that he left the minors for a period of one year and intended to abandon them during that period. (Fam. Code, §§ 7822.) We shall affirm the judgment.

As we will explain, the juvenile court properly held that the circumstance by which the minors' mother initially assumed sole physical custody of them was irrelevant to the determination whether father left the minors within the meaning of the statutory scheme. Indeed, it was not alleged that father left the minors at that time. The relevant factual context was the point at which it was claimed that, by his actions and inactions, father left and abandoned the minors. We also reject father's claim that there was insufficient evidence to support the juvenile court's finding that he left the minors for one year with the intent to abandon them during that time.

FACTUAL AND PROCEDURAL HISTORY

Father and the minors' mother were married in 1991. Their three children were born in 1996, 1997, and 1999, respectively. Father and mother separated in February 2000, with mother leaving the family home and taking the minors with her.

In March 2000, mother filed for legal separation, alleging that she left to escape father's "increasing instability and violence" and lived in domestic violence shelters.

The Yolo County Superior Court issued a temporary restraining order against father, directed that he have no visitations with the minors, and ordered the parties to attend mediation, with Shaaron Garey as the mediator. The parties agreed that, if Garey found it appropriate, father could have supervised visitation beginning in April 2000, and telephone contact with the children twice a week. Father agreed to drug testing and weekly individual counseling. In June 2000, the parties entered into a stipulation which provided, among other things, that visits would be supervised by mother's parents, and that father could contact them for the sole purpose of discussing issues related to the minors.

The family law matter came on for hearing on July 20, 2000. Father failed to appear. Garey expressed concern about father's "out of control behavior" and told the trial court the marriage therapist believed father's behavior was "cause for great concern because of the verbal abuse." Garey also felt mother's safety was at risk. At the July 20 hearing, the court suspended visitation pending further order of the court, and directed father to pay child support. The court also issued a permanent restraining order, protecting mother and her parents, and awarded legal and physical custody of the minors to mother, with no visitation for father.

On August 23, 2000, mother filed in the Yolo County Superior Court a petition for dissolution of marriage. The next day, father sought to set aside the restraining order, to reinstate mediation regarding custody of the minors and visitation, and to modify the child support order. Father's motions were denied, with the court stating it would not modify the visitation orders until receiving a written report from Garey.

Despite the restraining orders and the no visitation order, the parties agreed to father having monitored visits with the minors from May 2000 to February 2001. Initially, these visits were supervised by a professional organization, then by mother's parents, and then by mother's brother. Father's last visit and contact with the minors was in February 2001.

In June 2001, Garey filed a written report with the court. She noted there were ongoing areas of conflict and serious concern related to father's behavior, possible drug use, and alleged domestic violence. She also described some of father's attempts in May 2000 to contact mother "by leaving messages in his car window in front of [Garey's] office, as [mother] was meeting individually with [Garey] . . . . Further, [father] attempted to pass written messages through [Garey] stating that they were cards for the children."

Garey reported the maternal grandparents had facilitated and cooperated with supervising visits. Father "had a difficult time containing himself emotionally during these visits. His behavior was described as emotional and as obsessing with wanting to discuss [mother] and divorce matters with the grandparents." Later, mother's brother supervised visits. Those visits "also went poorly, with [father] behaving emotionally and erratically, and not focusing on the children. Again there was the issue of [father] wanting to engage in discussion regarding [mother] and the divorce issues." Garey reported that in February 2001, after a period in which the minors had no contact with father, a schedule was arranged for supervised visits and phone contact between father and the minors. However, he did not call the children as agreed, and he did not respond to the visitation schedule.

Garey recommended that, prior to continued contact with the minors, father should participate in a psychological evaluation, random drug testing, additional individual therapy, and anger management. She based these recommendations on the "original domestic violence allegations, the violations of the [restraining order], the ongoing difficulty with following both agreements and recommendations, and the serious concern regarding the emotional stability of [father] and the effect this may have on both his future and current ability to parent these young children."

In July 2001, the trial court followed Garey's recommendation and ordered father to participate in a psychological evaluation and testing prior to continued contact with the minors. The court also ordered father to participate in anger management and individual therapy, and to keep the court, the mediator, and mother's counsel advised of father's current address and telephone numbers. Jurisdiction on other issues was reserved.

Father moved to Florida in August 2001. He did not appear at the August 2001 hearing on the reserved issues of child support, custody, and visitation.

On September 14, 2001, the Yolo County Superior Court entered judgment on the reserved issues, confirming the earlier visitation orders and awarding mother sole legal and physical custody of the children. Father was ordered to participate in a psychological evaluation, including psychological testing with a psychologist appointed pursuant to Evidence Code section 730, and to have no contact with the minors pending completion of that evaluation. He was also ordered to keep the court, the mediator, and mother's attorney informed of father's current address and telephone number, to participate in random drug testing, to participate in anger management and individual counseling, and to pay child support.

It was reported that, on multiple occasions, father violated the restraining order, starting as early as May 2000. Some of the violations resulted in criminal convictions. In November 2001, father began repeatedly calling mother and her parents, frequently leaving angry and threatening phone messages which included demands about seeing the minors. In June 2002, he began sending e-mails to mother, matching the tone and subject of his phone messages.

In July 2003, pursuant to mother's request, the restraining order was renewed. The order, which continued to protect mother and her parents, was extended until the youngest minor became 18. The minors were not protected under the restraining order.

In October 2004, father filed a motion to modify visitation and child support. At the hearing, the court reiterated that father was required to undergo psychological evaluation before he could have contact with the minors and that he was ordered to submit to drug testing. The court also ordered father to contact Garey so she could review his progress and make recommendations. Ultimately, on June 13, 2005, the court denied father's request to modify the existing visitation and support orders.

On January 24, 2006, father filed another motion, seeking modification of the custody, visitation, and support orders. On March 23, 2006, the motion was denied. At the hearing, father claimed that he had completed the requirements to see the minors. The court ordered him to provide documentation of such compliance before filing further modification requests. The court also noted mother's intention to file for termination of father's parental rights.

On May 1, 2006, mother and her current husband filed in the Sacramento County Superior Court a petition to terminate father's parental rights and a request for adoption of the minors by their stepfather.

On May 23, 2006, father filed in the Yolo County Superior Court his third motion, seeking modification of orders regarding visitation and custody of the minors. The court again denied the motion and ordered that father not file further such motions until he had completed the previously ordered psychiatric evaluation, anger management classes, individual counseling, and he had proof of random drug testing. The court also warned father that it would order him to pay mother's attorney fees if he filed another motion without having completed the ordered services.

The trial on the petition to terminate father's parental rights took place in the Sacramento County Superior Court on November 2, 2006. The court terminated said rights on the ground of abandonment. (Fam. Code, ยง 7822.) Father appealed, and this court reversed on jurisdictional ...


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