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Abandonment of a Child Does Not Require Permanent Physical Desertion

Stepfather petitioned the Orange County family law court to terminate Father’s parental rights of a child. Stepfather did so as a precursor to adopting the child without Father’s consent. The Orange County family law court terminated Father’s parental rights, finding that he abandoned his child. Father appealed. After the child was born, Mother and Father lived together on and off for about six months. Mother then moved out after Father hit her while she held their child, and stopped all contact with Father. Stepfather became involved in child’s life while Father was incarcerated. Two years later Stepfather married Mother and filed a request to adopt the child in the Orange County family law court.

The main issue was whether the Orange County family law court had sufficient evidence to find that Father left the child in Mother’s custody and care, that he failed to support the child, and that he intended to abandon the child. In reviewing the Orange County family law court’s judgment, the appellate court’s function was to determine if substantial evidence existed to support that judgement. The Family Code section 7800 governs proceedings to terminate parental rights. Section 7801 states that the statute is intended to be construed “liberally” to protect the child’s welfare. Section 7822 describes abandonment as occurring when a parent leaves the child in the care and custody of the other parent for a year or more, either without any financial support or without any communication, with the intent to abandon the child. Moreover, the court in Amy A., described that case law focuses on the voluntary nature of a parent’s abandonment, not necessarily physical desertion by the parent.

The Court of Appeal determined that the Orange County family law court had substantial evidence supporting a finding of Father’s voluntary abandonment of the child. Specifically, when Father committed an act of domestic violence against Mother, he voluntarily left his child in the care and custody of Mother. After that, Father never made any real efforts to take parental responsibility of his child. His action, or lack thereof, indicated he was content to leave his child completely in Mother’s care. Father’s incarceration was not a legal defense to child abandonment. Evidence that Mother tried to prevent communication between the child and Father was relevant to determining Father’s intent to abandon. However, such efforts did not negate the fact that he failed to take custody or care of his child. Father’s intent to abandon his child was also evidenced by a failure to pay any child support, and failure to communicate with his child for nearly three years. An intent to abandon also does not require permanent abandonment, but merely for the statutory time of one year or more. On appeal the Court affirmed the Orange County family law court’s finding that Father abandoned his child, and that the termination of Father’s right was in his child’s best interest.

Adoption of Allison C. (2008) 164 Cal.App.4th 1004