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Adoption of L. J., A Minor. v. J. J

January 23, 2013

ADOPTION OF L. J., A MINOR. G. S., PLAINTIFF AND RESPONDENT,
v.
J. J., DEFENDANT AND APPELLANT.



(Super. Ct. No. 11FCO04440)

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

Adoption of L.J. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

J. J. (appellant) is the biological father of L. J. He appeals from a court order freeing L. J. from appellant's parental custody and control under Family Code*fn1 section 7822. On appeal, appellant argues there was insufficient evidence to prove he intended to abandon L. J. within the meaning of section 7822. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A

Family History

Mother and appellant were married in April 2005. One year later, L. J. was born. In July 2007, mother and appellant separated; mother moved in with her parents in Yorba Linda, California, taking L. J. with her. Shortly thereafter, mother obtained a temporary restraining order against appellant. Appellant was properly served with the temporary restraining order, which included notice of an upcoming hearing on a permanent restraining order. Despite receiving notice, appellant did not attend that hearing.

The Superior Court of California in Riverside County subsequently issued a three-year domestic violence restraining order prohibiting appellant from contacting, either directly or through third parties, mother, L. J., and L. J.'s half brother. Attached to the restraining order was a custody order, granting sole legal and physical custody of L. J. to mother and denying appellant visitation. At or about the same time mother obtained the permanent restraining order, a criminal complaint was filed in Riverside County charging appellant with domestic violence. That charge was later reduced to a misdemeanor for disturbing the peace.

In the fall of 2008, the Superior Court of California in Orange County ordered appellant to pay $900 a month in child support for L. J.*fn2 From the outset, appellant's child support payments were "sporadic." Appellant made partial support payments through a wage garnishment order in January and February 2009, but paid no child support between March 2009 and January 2010. Thereafter, appellant made partial child support payments through a wage garnishment order.

In July 2009, following a contested hearing where mother, appellant and L. J. each were represented by separate counsel, mother and appellant obtained a judgment in Orange County Superior Court dissolving their marriage. Included in that judgment was an order granting mother sole legal and physical custody of L. J. and awarding appellant supervised visitation with L. J. for three hours every Saturday. The order allowed appellant to use either a "non-professional" to supervise his visits with L. J., provided that person was approved by mother, or choose from the list of professional supervisors included in the order.

In October 2010, after living with her parents for three years, mother married G. S. and moved to Amador County. In January 2011, in Amador County, G. S. filed a petition to declare L. J. free from appellant's custody and control so that G. S. could adopt her. In support of his petition, G. S. argued appellant abandoned L. J. by failing to communicate with her or provide her with support in the 12 months preceding the petition. Appellant, who had not had any contact with L. J. since July 2007, opposed the petition and the matter went to trial.

B

Trial On The Petition To Free L. J. From Appellant's Custody

The first trial on the petition to free L. J. from appellant's custody and control, which began on August 23, 2011, ended in a mistrial. The second trial began on January 18, 2012.

1. Mother's Testimony

Mother explained she obtained the domestic violence restraining order against appellant because he was physically and verbally abusive to her during their marriage. While she was pregnant with L. J., appellant kicked her in the stomach, punched her in the face, held knives to her throat, and threatened her. Because of appellant's violent conduct, mother previously filed a petition in Orange County to terminate his parental rights to L. J., but she could not locate appellant to serve him with the petition.

Appellant had no contact with L. J. after mother left him in July 2007. Before she moved to Amador County in 2010, however, mother lived with her parents; appellant knew mother's parents and he knew where they lived. Mother believed appellant was permitted to contact L. J. through her parents if his contact was peaceful, but his contact with her parents had not been peaceful and after making threatening and harassing phone calls to mother's parents, they obtained a criminal protective order against him. Mother also believed appellant was permitted to contact L. J. through ...


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