Sarah and Christopher married in 2006. Their three children were born in 2006,
2007 and 2011. Sarah and Christopher separated in July 2011, in part because of
Christopher's drug use. A short time later, Sarah and the children moved into James's
home. The children visited Christopher on weekends.
In December 2011, the children stayed with Christopher for a week while Sarah
and James were on vacation in a foreign country. Christopher was drinking heavily
during this time. In a series of e-mails to Sarah, he said that he was not fit to have the
children in his care, that they would be better off without him, and that he would give
Sarah full custody of the children. Sarah told Christopher that he needed to take a break
from seeing the children.
1 Unless otherwise indicated, statutory references are to the Family Code. 2
Sarah filed for divorce in January 2012. Christopher agreed that Sarah would have
sole physical and legal custody of the children, subject to his liberal and reasonable
visitation rights, which were to be determined at Sarah's discretion. This agreement was
embodied in the marital settlement agreement, which was incorporated into the judgment
of dissolution of marriage. Christopher was ordered to pay child support in the amount of
$4,913 a month beginning May 1, 2012.
Beginning in the spring of 2012, Sarah refused to communicate with Christopher.
James told Christopher that he would have to be sober for 30 days before Sarah would
consider allowing him to see the children. Christopher completed a detoxification
program in June. In July, through her attorney, Sarah offered to allow Christopher one
hour of supervised visitation per month once he successfully completed 90 days of
sobriety. This schedule would continue for six months, after which Sarah would be
willing to negotiate additional visitation for Christopher.
Sarah and James were married in September. In November, Christopher filed a
request in the family court to modify custody, visitation and support orders or, in the
alternative, to vacate the judgment of dissolution.
In January 2013, James and Sarah filed a petition to free the children from
Christopher's custody and control, so that James could adopt the children (section 7822
petition). Their petition was filed under section 7822, subdivision (a)(3), which may
apply when "[o]ne parent has left the child in the care and custody of the other parent for
a period of one year without any provision for the child's support, or without
3
communication from the parent, with the intent on the part of the parent to abandon the
child." In a declaration, Sarah stated that Christopher had left his children in Sarah's sole
custody and that he had had "no contact with the children since December 27, 2011 to the
present nor any communication from the absent parent since February 14, 2012 (and only
token attempts at communication prior to that date)" with the intent to abandon them.
The petition further alleged that Christopher had not made any child support payments,
other than token amounts, since May 1, 2012, and that any payments that he made to
Sarah before that date had come from her share of community property income.
Christopher's request to modify custody and visitation orders was stayed pending
final determination of the section 7822 proceedings. (§ 7807.)2 Pursuant to San Diego
County Local Rule 5.1.2(C), the section 7822 proceedings were heard in the Juvenile
Division of the San Diego County Superior Court, not in the Family Court. On March 8,
2013, Tina Jako, an adoptions social worker with the San Diego County Health and
Human Services Agency (Agency), reported to the court that Sarah and James had not
2 Section 7807 provides that all proceedings affecting a child under specified provisions of Division 8 of the Family Code shall be stayed pending final determination of proceedings to declare the minor free from parental custody and control. The specified Family Code provisions include child custody and visitation, and paternity actions. However, the family court retains jurisdiction to issue protective orders, including domestic violence orders. (§ 7807, subds. (b) & (c).)
4
completed the necessary interviews for the stepparent adoption. The court3 appointed
counsel for the children and set a hearing date on the petition for April 19, 2013.4
On April 12, Jako informed the court that Sarah and James had not completed all
of the necessary paperwork for the stepparent adoption and requested a continuance of
the hearing date. At the request of minors' counsel, the court issued an order for weekly
supervised visitation between Christopher and the children, conditioned on a showing
that Christopher was clean and sober. The court ordered Sarah to cooperate with the
intake process at the supervised visitation facility by April 19 so that Christopher's
visitation with the children could begin. The court continued the hearing on the section
7822 petition to May 31.
Christopher submitted a clean drug test to the court. Sarah refused to cooperate
with the intake and orientation for supervised visitation for Christopher. She also
unsuccessfully sought to have minors' counsel removed from the case.
3 Judge Carolyn M. Caietti heard and ruled on the pretrial motions.
4 Section 7870, subdivision (b) provides: "Notwithstanding any other provision of law, a proceeding to declare a child free from parental custody and control pursuant to this part shall be set for hearing not more than 45 days after the filing of the petition. If, at the time set for hearing, or at any continuance thereof, service has been completed and no interested person appears to contest, the court may issue an order based on the verified pleadings and any other evidence as may be submitted. If any interested person appears to contest the matter, the court shall set the matter for trial. The matter so set has precedence over all other civil matters on the date set for trial." 5
In May, Jako filed a report stating that she had been unable to complete her
required investigation. Sarah and James had failed to complete the requirements for the
stepparent adoption case and, as a consequence, Jako was unable to proceed.
Sarah filed a motion for reconsideration of the visitation order. She asserted that
the court hearing the section 7822 petition lacked jurisdiction to make visitation orders.
The court stayed its prior visitation order and ordered counsel to brief the issue.
After reviewing the parties' briefs and listening to argument, the court denied
Sarah's motion. The court noted that the marital settlement agreement clearly
contemplated that Christopher would have visitation with the children. Once the
petitioners filed a section 7822 petition, the family court no longer had jurisdiction to
make any visitation orders. However, section 7801 provides that statutes governing an
action to free a child from a parent's custody and control are to be liberally construed.
The court detailed Sarah and James's lack of cooperation with the social worker and
noted that they had failed to complete the paperwork for the companion stepparent
adoption case. In addition, the court observed that, at Sarah's request, the hearing on the
section 7822 petition had been continued to September 27, to accommodate her
pregnancy. According to the court, all of these factors had contributed to the delay in
hearing the section 7822 petition, which by statute was to be held within 45 days of the
filing of the petition. At the time of this hearing, it had been six months since the petition
was filed. In addition, the court noted that minors' counsel was not requesting a change
in legal or physical custody but rather, enforcement of the existing visitation order that
6
granted "liberal, reasonable and flexible rights of visitation" to Christopher, although at
Sarah's sole discretion.
The court stated, "Obviously, this is an interim order depending on the outcome of
the trial. If the petitioner's request is granted, [the interim] order would go away, and if
it's not granted, then I believe you would go back to family court and litigate there." The
court added that any current court-ordered visitation would not be used against petitioners
in their attempt to show that Christopher had abandoned his children within the meaning
of section 7822. The court modified its prior visitation order to delete the requirement
that Sarah participate in the intake process at the visitation facility.
A trial on appellants' petition for freedom from custody and control was held on
September 25, 27 and 30, 2013.5 The court admitted in evidence social worker Jako's
section 7822 report, which included the visitation supervisor's reports of Christopher's
interactions with the children during visits, and took judicial notice of the other reports
that Jako had filed in the case. The court also admitted in evidence various exhibits,
including the parties' financial records and e-mails, social media posts and letters.
Jako reported that as of September 24, 2013, Sarah and James had not participated
in the required interviews, nor had they completed the paperwork that was required for
stepparent adoption. Jako believed that the allegations of abandonment under section
7822 could not be sustained. Although Christopher had not visited his children from
December 28, 2011 to January 7, 2013, Jako could not conclude that Christopher
5 Judge Cynthia A. Bashant presided at the trial on the section 7822 petition. 7
intended to abandon the children. According to Sarah, Christopher requested visitation
and telephoned the children until March 2012. Christopher told Jako that he asked to
visit the children every month and talked with them on the telephone regularly until mid-
to late 2012. He hired an attorney in July 2012 and filed a motion for visitation in family
court in November 2012. The fact that Christopher had contact with the children and
asked to visit them during the statutory period precluded a determination that he had no
communication with the children for a period of one year. Jako also concluded that there
was no showing that Christopher had failed to provide financial support for the children
for a one-year period. In addition, the two older children clearly remembered their father
and wanted to have contact with him. In Jako's opinion, Christopher never intended to
abandon his children, and adoption was not in the children's best interests.
Christopher acknowledged during his testimony that he had a serious substance
abuse problem for many years, until 2000. He then maintained his sobriety for a period
of eight years, after which he resumed using marijuana and then began using steroids.
Christopher had been sober since June 1, 2012, and was regularly attending Alcohol
Anonymous meetings. After Christopher and Sarah separated in July 2011, the children
stayed with him on most weekends. He did not use drugs while they were in his care.
However, he acknowledged that he was drinking heavily on December 27 and 28 while
Sarah and James were out of the country and the children were in his care. Christopher
acknowledged that, for a brief period at a time when he was deeply depressed, he thought
that it would be better if he did not see the children.
8
Christopher testified that Sarah had access to his corporate business account for
support until their divorce was final.6 She said that she needed $7,000 per month to
support herself and the children. Christopher had made child support payments until July
2012, when he needed the funds to hire an attorney. He always maintained health
insurance for the children. Between June 2011 and February 2013, he paid Sarah
$78,591 in child support.
Sarah testified that when she and Christopher separated, they agreed that they
would each receive $7,000 per month from their business. According to Sarah, the
checks were marked "support" or "child support" for federal tax purposes, but they were
not really child support payments. Instead, Sarah maintained, the funds were Sarah's
share of community property income. Sarah said that Christopher did not make any child
support payments between June and December 2012.
Sarah acknowledged that Christopher had asked to see the children every month
from late December 2011 to late July 2013. She demanded that he provide sufficient
proof of sobriety to her before she would agree to allow him to see the children.
Christopher told Sarah that he was sober, but she did not believe him. Sarah
acknowledged that she received an e-mail from Christopher in March 2012, in which he
stated: "Sarah, I beg you, please allow me to have the kids every second weekend and
6 Sarah owned approximately 25 percent of the shares in the corporation. She worked in the business until she and Christopher separated, at which time she reduced her work hours to approximately 5 percent of what they had been. However, Sarah continued to draw a payroll check for that work. She did not work in the business after the divorce. 9
the holiday weeks as laid out in your proposal." Sarah explained that she did not allow
Christopher to see the children because she was waiting for him to provide a clean drug
test and maintain his sobriety for an extended period of time.
The court found that Sarah and James's petition lacked merit. The court was
"seriously concerned" that they had filed the section 7822 petition solely to delay a
hearing on Christopher's petition for modification of the family court's custody and
visitation orders. The court stated that the evidence clearly showed that Christopher had
repeatedly tried to see his children during the last two years and concluded that, to the
extent that Christopher had not seen his children during the last 18 months, Sarah had
prevented him from doing so. In addition, there was insufficient evidence to show that
Christopher had failed to pay any child support for a period of one year. The court found
that it was not in the children's best interests to terminate Christopher's parental rights and
dismissed the section 7822 petition, referred the case to the family court, and ordered that
Judge Caietti's temporary visitation order remain in effect until modified by another
court.
At a later date, the court granted Christopher's application for attorney fees,
finding that Sarah and James had filed the section 7822 solely to delay the family court
proceedings and to interfere with Christopher's visitation rights. The court stayed the
order for payment of attorney fees pending resolution of this appeal.
10
DISCUSSION
I
FREEDOM FROM CUSTODY AND CONTROL
A. The parties' contentions
Sarah and James contend that there is not substantial evidence to support the
court's finding that Christopher did not intend to abandon his children. They argue that
Christopher clearly communicated his intent to abandon his children; that he made only
pretextual attempts to see the children after December 2011; and that he made only token
payments to support his children from January 6, 2012 to January 6, 2013. Appellants
further argue that the court erred in failing to limit its inquiry into whether Christopher
intended to abandon his children to the year preceding the filing of the section 7822
petition, and instead relied on the actions that Christopher took after the petition was
filed, to support its finding that Christopher did not intend to abandon his children.
Christopher and minors' counsel contend that the court's findings are supported by
substantial evidence.
B. Statement of law and standard of review
If a parent has left his or her child in the care and custody of the other parent for a
period of one year without any provision for the child's support, or without
communication from the parent, with the intent on the part of the parent to abandon the
child, a court may declare the child free from the parent's custody and control. (§ 7822,
subd. (a)(3).) The failure to provide support or the failure to communicate is presumptive
11
evidence of the intent to abandon. If the parent has made only token efforts to support or
communicate with the child, the court may declare the child abandoned by the parent.
(§ 7822, subd. (b).) A declaration of freedom from custody and control terminates all
parental rights and responsibilities to the child. (§ 7803.)
A finding of abandonment is appropriate where three main elements are met: (1)
the child must have been left with another; (2) without provision for support or without
communication from the parent for the statutory period; and (3) with the intent on the
part of the parent to abandon the child. (Adoption of Allison C. (2008) 164 Cal.App.4th
1004, 1010, citing In re Cattalini (1946) 72 Cal.App.2d 662, 665.) " ' "In order to
constitute abandonment there must be an actual desertion, accompanied with an intention
to entirely sever, so far as it is possible to do so, the parental relation and throw off all
obligations growing out of the same." ' " (In re Brittany H. (1988) 198 Cal.App.3d 533,
549.) The parent need not intend to abandon the child permanently; it is sufficient the
parent had the intent to abandon the child during the statutory period. (Amy A., supra,
132 Cal.App.4th at p. 67.) " '[The] question whether such intent to abandon exists and
whether it has existed for the statutory period is a question of fact for the trial court, to be
determined upon all the facts and circumstances of the case.' " (In re Brittany H., at
p. 550.)
As noted, a proceeding to declare a child free from parental custody and control
pursuant to section 7822 is to proceed on an expedited basis. The matter must be set for
hearing not more than 45 days after the filing of the petition. (§ 7870, subd. (b).) "The
12
court may continue the proceeding for not to exceed 30 days as necessary to appoint
counsel and to enable counsel to become acquainted with the case." (§ 7864.) A
continuance of a section 7822 hearing may be granted only on a showing of good cause
and only for that period of time shown to be necessary by the evidence considered at the
hearing on the motion. (§ 7871.)
The reviewing court examines the record to determine whether there is substantial
evidence to support the trial court's conclusions. (In re Adoption of Allison C., supra, 164
Cal.App.4th at p. 1010.) The reviewing court has no power to pass on the credibility of
witnesses, resolve conflicts in the evidence or determine the weight of the evidence. (In
re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) It is the appellant's burden on review to
show that the evidence is insufficient to support the trial court's findings. (In re Adoption
of Allison C., at p. 1011.)
C. There is ample evidence to support the finding that Christopher did not intend to abandon his children
Appellants' brief "ignores the precept that all evidence must be viewed most
favorably to [the prevailing party] and in support of the order." (In re Marriage of
to reweigh the evidence, which is not the function of the reviewing court. When an
appellant attempts merely to reargue the " 'facts,' " the argumentative presentation
violates the appellate rules noted above, and also "disregards the admonition that she is
not to 'merely reassert [her] position at . . . trial.' " (Ibid.) "[S]uch 'factual presentation is
13
but an attempt to argue on appeal those factual issues decided adversely to [the party] at
the trial level, contrary to established precepts of appellate review.' " (Ibid.)
The record contains ample evidence to support the trial court's finding that
Christopher did not leave his children in the care and custody of the other parent for a
period of one year without any provision for their support, with the intent to abandon the
children. (§ 7822.) The record shows that Sarah received more than $18,000 in checks
from the business that were marked as "support" or "child support" during the one-year
statutory period preceding the filing of the section 7822 petition. The court could
reasonably reject Sarah's claim that those checks were marked as child support payments
only for federal taxation purposes and instead merely represented her share of community
property income.7 Sarah also received more than $9,700 in checks from the business that
were not specifically marked as child support, during the statutory period. In addition,
Christopher continuously maintained health care insurance for the children at a cost of
$560 a month. Viewing the evidence in the light most favorable to the judgment,
7 Even if we were to accept Sarah's argument that these funds were her share of community property income, we would not be persuaded that there was sufficient evidence to show that Christopher left his children without provision for support. The record shows that Sarah and Christopher were still married during this period and there was no court order for child support in effect. Christopher continued to work and operate the business, while Sarah had drastically cut the hours that she worked in the business. Christopher and Sarah agreed that they would each be entitled to receive $7,000 a month from the business pending the resolution of their divorce proceedings. Section 7822 applies when a parent leaves his or her child "without any provision for the child's support." The statute does not state that it applies when a parent fails to pay child support. When, as here, a noncustodial parent makes arrangements to continue the custodial parent's income, that does not constitute a failure to leave a child without any provision for support within the meaning of section 7822. 14
Christopher provided approximately $44,480 in support to his children during the
statutory period. We reject any argument that this is a token amount. The record thus
contains substantial evidence to show that Christopher did not leave his children without
making any provision for their support during the statutory period. (§ 7822.)
In addition, there is substantial evidence to show that Christopher communicated
with the children during the statutory period and that he repeatedly asked Sarah to allow
him to visit them. The record shows that Christopher regularly telephoned the children
until mid-2012, approximately five to six months after the petition was filed. He testified
that he asked to see the children numerous times during the statutory period. Sarah
acknowledged that Christopher telephoned the children and asked to see them until
March 2012. After that point in time, she refused to communicate with Christopher.
When Christopher complied with Sarah's request that he maintain his sobriety for 30 days
before she would allow the children to be in his care, she then demanded a 90-day period
of sobriety, after which she would allow Christopher to have one hour of supervised
visitation with the children per month. After Sarah imposed this condition, Christopher
hired an attorney and filed a petition to modify the custody and visitation order.
We are not persuaded by appellants' argument that the court impermissibly relied
on actions that Christopher took after they filed their section 7822 petition to support the
finding that he did not intend to abandon his children. As discussed above, there is ample
evidence to show that Christopher took affirmative steps to maintain his parental
relationships with his children during the period of time that he was alleged to have
15
intended to abandon them. Appellants assert that the court did not limit its consideration
of whether Christopher intended to abandon the children to the one-year period that
preceded the filing of the section 7822 petition, which they contend is the relevant
statutory period.8 However, the record shows that the court found that Christopher had
repeatedly attempted to see his children for the last two years, and that to the extent that
he had not seen them during the last 18 months, this was solely because Sarah had
prevented him from doing so. The court's findings clearly encompass the one-year
statutory period at issue here, and include the one-year period immediately preceding the
filing of the section 7822 petition. There is substantial evidence to support the court's
findings.
The court reasonably concluded that the petitioners did not meet their burden to
show, by clear and convincing evidence, that Christopher left the children with Sarah for
a period of one year without any provision for support or without communicating with
them and, thus, that he intended to abandon them within the meaning of section 7822.
II
THE COURT DID NOT ABUSE ITS DISCRETION WHEN IT ISSUED A TEMPORARY VISITATION ORDER
A. The parties' contentions
Sarah and James contend that the court did not have jurisdiction to issue a
visitation order. (§ 7822.) They argue that section 7807 prohibits a court from making
8 We do not address whether the statutory period for abandonment under section 7822 is limited to the one year that immediately precedes the filing of the petition. 16
visitation and custody orders while a section 7822 proceeding is pending, and that there is
no other statutory authority for such an order. Sarah and James contend that the court
erred in issuing the interim visitation order while the section 7802 petition was pending,
and further maintain that when the court ordered that the visitation order remain in effect
upon dismissing the section 7822 petition, it did so without affording Sarah her due
process right to notice and an opportunity to be heard.
In asserting that the court has the authority to issue visitation orders in a section
7822 proceeding, Christopher relies on provisions of the juvenile dependency scheme.
However, that statutory scheme does not apply to proceedings under section 7822. (See
In re M.C. (2011) 199 Cal.App.4th 784, 790; In re Chantal S. (1996) 13 Cal.4th 196, 200
["Dependency proceedings in the juvenile court are special proceedings with their own
set of rules, governed, in general, by the Welfare and Institutions Code."].) A petition to
free a child from the custody and control of a parent under section 7822 is not a
dependency proceeding. Christopher also relies on California Rules of Court,9 rule
5.2(g),10 which states: "In the exercise of the court's jurisdiction under the Family Code,
if the course of proceeding is not specifically indicated by statute or these rules, any
suitable process or mode of proceeding may be adopted by the court that is consistent
with the spirit of the Family Code and these rules."
9 Further rule references are to the California Rules of Court.
10 Christopher mistakenly cites rule 5.140, which was repealed effective January 1, 2013. The identical language is now found in rule 5.2(g), effective January 1, 2013. 17
Minors' counsel argues in her brief on appeal that the court properly ordered
continued visitation between the children and their father when it dismissed the section
7822 petition. She implicitly agrees that the court acted in excess of its jurisdiction when
it continued the temporary visitation order, but maintains that the order remains "valid
but voidable."11 (See People v. American Contractors Indemnity Co. (2004) 33
Cal.4th 653, 661 [when a court has fundamental jurisdiction, but acts in excess of its
jurisdiction, its act or judgment is not void but merely voidable].) Minors' counsel
contends that this court should not void the visitation order because it is in the children's
best interests to maintain their relationships with their father, and the temporary visitation
order does not offend public policy.
B. The court did not act in excess of its jurisdiction when it issued a temporary visitation order
Appellants correctly state that there is no statutory authority that specifically
authorizes a court that is hearing a section 7822 petition to issue a visitation order. We
nevertheless conclude that under the particular circumstances presented here, the court
did not act in excess of its jurisdiction when it issued a temporary visitation order during
the proceedings and continued that order when it dismissed the petition.
"All courts have inherent powers that enable them to carry out their duties and
ensure the orderly administration of justice. The inherent powers of courts are derived
11 At oral argument, minors' counsel argued that the trial court did not act in excess of its jurisdiction when it fashioned a limited visitation order while the section 7822 petition was pending. 18
from California Constitution, article VI, section 1, and are not dependent on statute."
(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110; see Code Civ. Proc.,
§ 128, subd. (a)(8) [every court has the power to amend and control its process and orders
so as to make them conform to law and justice].) However, the inherent authority of the
court may not be exercised in a manner that is inconsistent with, or contravenes, a statute.
(Travelers Casualty & Surety Co. v. Superior Court (2005) 126 Cal.App.4th 1131, 1144;
see rule 5.2(g) [court may adopt any suitable process or mode of proceeding that is
consistent with the spirit of the Fam. Code and the rules, provided that the course of
proceeding is not specifically indicated by statute or rule].) Where a statute authorizes
the court to act within a prescribed procedure, and the court acts contrary to the authority
that has been conferred, it has exceeded its jurisdiction.12 (In re Marriage of Jackson,
supra, 136 Cal.App.4th at p. 988.) This doctrine applies only where the clear purpose of
the statute is to restrict or limit the power of the court to act and where the effective
enforcement of such restrictions requires the use of the extraordinary writs of certiorari or
prohibition. (Id. at p. 988, fn. 6.)
We do not read section 7807 and related statutes as clearly restricting the power of
a court that is hearing a section 7822 petition to issue a temporary visitation order, when
12 "Lack of jurisdiction in the 'most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]' " (In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 988.) Any judgment or order rendered by a court lacking subject matter jurisdiction is void. (Ibid.) This is not the case here. The court clearly had subject matter jurisdiction under section 7822. 19
such an order is necessary to ensure the orderly administration of justice. Section 7801
directs the court to liberally construe a Family Code action to terminate parental rights to
serve and protect the interests and welfare of the child. (§ 7801.) Section 7807 provides
in relevant part that the legislative findings stated in section 302013 and the authority to
issue custody orders under section 302214 do not apply in a proceeding to declare a child
free from his or her parent's custody and control. Section 3020 states that it is the public
policy of California to assure that children have frequent and continuing contact with
both parents, and to encourage parents to share the rights and responsibilities of child
rearing, except where the contact would not be in the best interests of the child. (§ 3020,
subd. (b).) Although section 7807 operates to restrict a court from issuing a custody
13 Section 3020 states: "(a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. "(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011. "(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members."
14 Section 3022 provides that "[t]he court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper." 20
order under section 3022 during a section 7822 proceeding, section 3022 does not refer to
visitation orders. Where the Legislature refers to a particular statute containing a word or
phrase, the omission of another word or phrase in that statute, or the lack of reference to
another statute dealing with the same general subject matter, shows a different legislative
intent. (Cf. In re Jennings (2004) 34 Cal.4th 254, 273.) Thus, although it is not the
policy of the State of California to assure the child's frequent and continuing contact with
a parent who is alleged to have abandoned the child, section 7807 does not clearly
restrict a court from protecting that parent's visitation rights and ensuring the orderly
administration of justice where the court believes that the judicial process is being used
solely to delay the resolution of a family court action for custody or visitation.
The court characterized the petition to terminate Christopher's parental rights as
"frivolous" and stated, "[I]t appears to me that this has just been one attempt to stall the
father from having visitation, and that's a misuse of the court process to file a termination
just to try to keep father from having visitation." The court's finding is amply supported
by the record. Although Sarah expressed concern about her children's welfare to
Christopher in an e-mail shortly after the December 2011 incident, she focused her
comments on Christopher's shortcomings as a husband, including his use of community
income to buy drugs and to support his mistress during Sarah's pregnancy with their
youngest child. Sarah then set a series of escalating conditions that Christopher would
have to meet before she would consider allowing him to see the children, and proposed to
limit his contact with the children to one hour of supervised visitation per month even
21
after he proved to her that he had been sober for 90 days. In response, on November 1,
2012, Christopher filed a petition to modify the prior custody and visitation orders. Sarah
and Christopher were ordered to attend mandatory child custody counseling on January 4,
2013, and a hearing was set in family court for January 31. Sarah and James then filed a
section 7822 petition, which by statute stayed the family court proceedings. (§ 7807,
subd. (b).)
On March 8, at the initial hearing on the section 7822 petition, the court appointed
counsel for the children and set a hearing date on the petition for April 19. In March,
April and May, social worker Jako reported to the court that Sarah and James had not
completed the interviews and paperwork required for stepparent adoption. The court
continued the hearing from April 19 to May 31, from May 31 to June 19 and from June
19 to September 25. At the time of the September hearing, Sarah and James still had not
completed the interviews and paperwork that were required for stepparent adoption.
In addition to the delays caused by Sarah and James's lack of diligence in
cooperating with the stepparent adoption process, the report of the visitation supervisor,
which was made under penalty of perjury, raises serious concerns about Sarah's motive
for filing the section 7822 petition. The report suggests that Sarah was attempting to
undermine Christopher's relationships with the children, as well as the children's
relationships with minors' counsel. On the children's first visit with Christopher in 18
months, five-year-old Abigail M. told him, "I love you. I almost cried one day because I
missed you so much." The visitation supervisor reported that Christopher's parenting
22
style was "structuring, teaching, protecting and nurturing." The visits were generally
very positive and the children were usually excited and happy to see their father.
However, the two older children made comments that indicated that their mother was
trying to undermine their relationships with their father. For example, at the first visit,
Abigail said to Christopher, "Mommy said you didn't love us and that's why you didn't
see us." E.M., who turned seven years old during the course of these proceedings, told
Christopher, "Mommy said we have to call you Chris, but I like calling you daddy and I'll
tell her that . . . ." When Christopher told his daughter that it was okay for her to call him
daddy, she replied, "I like to call you daddy but don't tell mom cause I don't want to get
in trouble." At the next visit, both children said that they did not like minors' counsel
because she was trying to take them away from their mother. Abigail said, "[Minors'
counsel] is going to tell the judge lies."
During a visit at the end of August, Sarah telephoned the visitation center director
a few minutes after the visit had started and insisted that E.M. needed to be asked
privately whether she wanted to continue the visit. Sarah asserted that E.M. was afraid of
Christopher. Visitation center personnel checked on the children, who were sitting next
to Christopher and playing a game with him. The director told Sarah that everything was
fine. Sarah continued to insist that E.M. was being forced to visit with Christopher.
During the visit on September 20, which E.M. did not attend, Abigail called
Christopher "Chris." Christopher told her, "You silly, I'm, daddy." Abigail then told
him, "I have to call you Chris. It's the rules. Daddy, I mean Chris, it's the rules. I want
23
to call you daddy but I don't want to get in trouble. . . . I know why we can't call you
'daddy,' daddy, I mean Chris. I want to tell you but I can't." Christopher hugged his
daughter, and told her, "It's ok. We're together now and we love each other[,] that's all
that matters." Abigail rubbed her eyes with her fists and appeared to be crying. At the
end of the visit, Abigail asked the visitation supervisor to tell her nanny that she had
called her father "Chris" so that she would not get in trouble at home. The supervisor
told Abigail that she did not have to say anything to the nanny because the visit was
private. Abigail took the supervisor's hand, tugged on it, and said "please." The
supervisor told the nanny that the visit had gone well and that Abigail had asked her to
say that the name "Chris" was used. The nanny shrugged and said, "That's the parent."
When Judge Caietti ordered visitation in July 2013, she noted that the matter
should have proceeded to a hearing on the petition within 45 days after the petition was
filed. Instead, six months had elapsed because Sarah and James had not cooperated with
the social worker and, as a result, the social worker had been unable to complete her
section 7822 report, which was required by statute. In addition, the hearing had been
postponed to September to accommodate Sarah's medical condition. Minors' counsel had
requested visitation as being in the best interests of the children, who wanted to see their
father. The court fashioned a limited visitation order, allowing Christopher to visit his
children in a supervised setting for no more than two hours a week. The record supports
findings that Sarah and James's lack of cooperation with the social worker was impeding
the timely resolution of the section 7822 petition and that a visitation order was in the
24
children's best interests (§ 7890.)15 Given section 7801's directive that the statutes
governing petitions for freedom from custody and control be construed to serve and
protect the interests and welfare of the child, the court did not act in excess of its
jurisdiction when it issued a limited visitation order during the pendency of the section
7822 petition.
Further, the record clearly permits the reasonable inference that if the court had
not ordered visitation to continue at the time it dismissed the section 7822 petition, Sarah
would not have allowed Christopher to visit the children, thereby further undermining his
relationships with the children while his motion to set aside prior custody and visitation
orders was pending in the family court.
At oral argument on appeal, Sarah's counsel took the position that no court has
jurisdiction to modify or enforce an existing visitation order, or to issue a temporary
visitation order, during the pendency of a section 7822 proceeding. We reject this
contention. As noted, section 7822 is to be liberally construed to serve and protect the
interests and welfare of the child. (§ 7801.) In ruling on a section 7822 petition, the
court is required to act in the best interests of the child. (§ 7890.) The plain language of
section 7807 stays any proceedings for custody and visitation in the family court while an
action to free a child from the parent's custody and control is pending. Thus, the court
hearing a section 7822 petition under local rule is the only court with jurisdiction to act in
15 Section 7890 states that in a proceeding under section 7822, "the court shall consider the wishes of the child, bearing in mind the age of the child, and shall act in the best interest of the child." 25
the best interests of the child. To conclude that the court hearing a section 7822 petition
has no authority to issue or implement an order that the court determines is in the
children's best interests would contravene the principle that judicial proceedings that
concern children, whether an action for custody, visitation, protection or termination of
parental rights, have as their core value the best interests of the child. It necessarily
follows that a court that has jurisdiction to hear an underlying matter concerning the child
must also have, subject to some clearly delineated statutory limitations, the authority to
issue orders to protect a child's welfare and well-being, including the authority to issue a
temporary visitation order during the pendency of a section 7822 proceeding.
In view of delays in the section 7822 proceedings, the court could reasonably
conclude that it was unlikely that a hearing on custody and visitation in family court
would be held in a timely manner. The court has an obligation to serve and protect the
interests of the child and to ensure the orderly administration of justice. (§ 7801;
Nickolas F. v. Superior Court, supra, 144 Cal.App.4th at p. 110.) We conclude that the
court did not act in excess of its jurisdiction when it dismissed the section 7822 petition
and continued the temporary visitation order until further order of this court or the family
court.
Finally, we are not persuaded by Sarah's argument that the court violated her
procedural due process rights to notice and an opportunity to be heard when it continued
the temporary visitation order upon dismissal of the section 7822 petition. The record
shows that Sarah had a full and fair opportunity to litigate minors' counsel's request for
26
visitation in July 2013. At the close of the hearing on the section 7822 petition, the court
stated, "I'll refer the case back to Family Court for custody proceedings. In the
meantime, the visitation order by Judge Caietti remains in force and effect until either
modified by Family Court or the Supreme Court or any other court that has control over
the proceedings . . . ." Sarah was present and represented by counsel when the court
made its order. She had the opportunity to be heard on the issue of the continuation of
the temporary visitation order, but raised no objection to it.
In view of our conclusion that the court did not exceed its jurisdiction in issuing a
temporary visitation order in connection with the section 7822 proceedings under the
circumstances of this case, as well as the positive reports about Christopher's parenting
by the visitation supervisor, the position of minors' counsel in favor of visitation, and the
evidence of Sarah's efforts to impede the children's relationships with their father, any
failure to relitigate the issue of visitation upon the dismissal of the section 7822 petition
is harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18,
24.)
III
THE COURT PROPERLY EXERCISED ITS DISCRETION IN ORDERING PETITIONERS TO PAY CHRISTOPHER'S LEGAL FEES
A. Additional factual and procedural background and contentions on appeal
At the close of the section 7822 hearing, Christopher made an oral motion for an
award of attorney fees and costs. The court noted that the only motion before it at that
27
time was minors' counsel's request for the parents to equally share the costs of her
services. The court declined to hear Christopher's motion at that time.
On October 17, Christopher filed a motion for attorney fees and costs. Detailing
Sarah's attempts to impede his visitation, Christopher asserted that he was entitled to
attorney fees and costs in the amount of $23,500 because Sarah and James had filed the
section 7822 petition solely to delay the resolution of his request to modify custody,
visitation, and support orders, which was pending in the family court.
Sarah and James filed a written opposition to the motion for attorney fees. They
argued that they had filed the section 7822 petition in response to Christopher's substance
abuse and neglect of the children, and his failure to support the children for an extended
period. They also objected to the court's consideration of the motion for attorney fees on
a number of procedural grounds, which we describe in detail below.
In making its findings on Christopher's motion for attorney fees, the court stated,
"I've been hearing freedom from custody and control petitions now for about 12 years.
I've heard hundreds of these cases, and I have to say that this particular petition has the
least merit of any of them that I've heard." The court found that Sarah and James had
filed the section 7822 petition solely to delay the family court proceedings and to prevent
Christopher from visiting his children. The court said that it understood the procedural
objections to the motion, but found that Sarah and James had sufficient notice of the
motion and an opportunity to respond, and that they had in fact responded. The court
28
granted the motion for attorney fees and stayed its order pending resolution of this
appeal.
Sarah and James challenge the court's finding that they filed their section 7822
petition solely to impede Christopher's visitation with the children. They also contend
that Christopher's motion for attorney fees was defective because it was not filed on a
mandatory court form and did not include an updated income and expense declaration, as
required by rule 5.92(a); did not comply with notice requirements under Code of Civil
Procedure section 1005, subdivision (b), which requires that service be made at least 16
days in advance of any court hearing; and was not properly served on the parties or
counsel because it was sent via unapproved facsimile. They further contend that Code of
Civil Procedure section 128.5 does not apply to cases filed after 1994.16
B. Legal principles and standard of review
Section 27117 " 'authorizes sanctions to advance the policy of promoting
settlement of litigation and encouraging cooperation of the litigants' and 'does not require
16 "[Code of Civil Procedure section] 128.5[, subdivision] (a) does not authorize trial courts to impose sanctions for any form of litigation misconduct arising 'from a complaint filed, or a proceeding initiated' after December 31, 1994.' " (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 819.) However, authorization to impose sanctions is now found in Code of Civil Procedure section 128.7. (Olmstead, at pp. 811, 813-814.) Because we conclude that the court did not err when it ordered sanctions under Family Code section 271, we need not address authorization for sanctions under any applicable provision of the Code of Civil Procedure.
17 "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney 29
any actual injury.' [Citation.] Litigants who flout that policy by engaging in conduct that
increases litigation costs are subject to imposition of attorney fees and costs as a section
271 sanction." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) Section
271 does not specify the form of notice to be provided. The only statutory procedural
requirement is " 'notice to the party against whom the sanction is proposed to be imposed
and opportunity for that party to be heard.' (§ 271, subd. (b).)" (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1495.)
The imposition of sanctions under section 271 is committed to the sound
discretion of the trial court. The trial court's order will be upheld on appeal unless the
reviewing court, "considering all of the evidence viewed most favorably in its support
and indulging all reasonable inferences in its favor, no judge could reasonably make the
order." (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226.)
furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." (§ 271, subd. (a).) "An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard." (Id., subd. (b).) 30
C. Substantive findings
Sarah and James contend that the court erred when it found that they filed their
section 7822 petition solely to delay Christopher's visitation with his children. Asserting
that Sarah was credible and that Christopher committed perjury, they argue that the
evidence supports the finding that Christopher intended to abandon the children and that
the section 7822 petition was therefore not frivolous. Appellants also assert that they
were not responsible for the nine-month delay between the filing and the resolution of the
section 7822 petition. In support of this assertion, they point to a discussion with the
court in May 2013 in which they "suggested" that the court could dismiss the proceedings
if it believed that the proceedings were taking too long to complete.
Appellants' contentions are without merit. Their briefing on this issue again
disregards the rule that on review, we view all evidence in the light most favorable to the
prevailing party. (Davenport, supra, 194 Cal.App.4th at p. 1531.) It is not the function
of the reviewing court to decide questions of fact or credibility. (In re Zeth S. (2003) 31
Cal.4th 396, 405; Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 877.)
Appellants' assertion on appeal that they suggested that the court could dismiss the
proceedings if the court believed that they were delaying the social worker's report is
disingenuous insofar as the assertion is intended to imply that if the juvenile court had
simply dismissed the section 7822 petition, that would have ended the matter.18 In fact,
18 On May 24, 2013, the court found that it was necessary to delay the hearing due to Sarah's lack of cooperation with the Agency. 31
when the court expressed concern that the hearing on the petition would not occur within
45 days, as required under section 7870, appellants' attorney stated that the appropriate
remedy was dismissal of the petition but added, "I oppose dismissal, especially when we
have the trial right around the corner. But that is the remedy. . . . The dismissal would be
without prejudice. My client can refile. And hopefully we would have all the
information [for the social worker], and we can get it done within 45 days. That's why
you want to avoid doing it." (Italics added.) We reject appellants' argument that they
should not be held responsible for payment of attorney fees under section 271 because
they were not responsible for any delay.
The court did not abuse its discretion when it ordered Sarah and James to pay
Christopher's attorney fees and costs. As discussed in part II.B, ante, there is ample
evidence to show that Sarah and James filed the section 7822 petition in order to impede
Christopher's visitation with his children and to delay the resolution of his request to
modify custody and visitation orders.
D. Procedural objections
Sarah and James assert a number of procedural errors stemming from
Christopher's lack of compliance with rule 5.92.19 Assuming, without deciding, that rule
19 In relevant part, rule 5.92 states: "(a)(1) In a family law proceeding other than an action under the Domestic Violence Prevention Act or a local child support agency action under the Family Code, a notice of motion or order to show cause must be filed on a Request for Order (form FL-300), unless another Judicial Council form has been adopted or approved for the specific motion or order to show cause. [¶] . . . [¶] (5) A completed Income and Expense Declaration (form FL-150) or Financial Statement (Simplified) 32
5.92 applies to motions under section 271,20 Sarah and James do not show, nor even
attempt to show, that they were prejudiced by any alleged procedural deficiency.
"Absent an explicit argument that a procedural error caused prejudice, we are under no
obligation to address the claim of error." (Quail Lakes Owners Assn. v. Kozina (2012)
204 Cal.App.4th 1132, 1137.)
"The court must, in every stage of an action, disregard any error, improper ruling,
instruction, or defect, in the pleadings or proceedings which, in the opinion of said court,
does not affect the substantial rights of the parties. No judgment, decision, or decree
shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it
(form FL-155) must be filed with the Request for Order (form FL-300) when relevant to the relief requested unless a current form is on file with the court." (Adopted eff. July 1, 2012.)
20 In Davenport, the appellant asserted that the request for sanctions was improper because it was not on the required Judicial Council form and notice was improper. (Davenport, supra, 194 Cal.App.4th at p. 1529.) The reviewing court stated that "section 271 does not specify the form of notice to be provided." (Ibid.) All that is required is notice to the party against whom the sanction is sought and an opportunity for that party to be heard. (Ibid.) "The notice must also advise of the specific grounds and conduct for which the fees or sanctions are sought, and must be directed to the specific person against whom they are sought." (Ibid.) The reviewing court found that the respondent's motion, which was entitled "Respondent's Notice of Intention to Request Attorney Fees and Costs Pursuant to . . . Section 271," provided sufficient notice to the petitioner that respondent was seeking attorney fees under section 271. (Davenport, at p. 1529.) Christopher's motion was entitled "Respondent's Motion for Attorney Fees Pursuant to [Family Code] Section 271, & [Code of Civil Procedure] Section[] 128.5." His attached memorandum of points and authorities details the grounds on which the request was based, and includes an exhibit showing attorney fees and costs incurred to defend against the section 7822 action. Thus, like the motion for attorney fees and costs in Davenport, Christopher's motion provides sufficient notice to Sarah and James that he was seeking attorney fees under section 271. 33
shall appear from the record that such error, ruling, instruction, or defect was prejudicial,
and also that by reason of such error, ruling, instruction, or defect, the said party
complaining or appealing sustained and suffered substantial injury, and that a different
result would have been probable if such error, ruling, instruction, or defect had not
occurred or existed. There shall be no presumption that error is prejudicial, or that injury
was done if error is shown." (Code Civ. Proc., § 475; Cal. Const., art. VI, § 13 [no
judgment will be set aside unless the court, after an examination of the entire cause, is of
the opinion that the error has resulted in a miscarriage of justice].) A reviewing court
may not reverse a judgment for a procedural error absent a miscarriage of justice. (Quail
Lakes Owners Assn. v. Kozina, supra, 204 Cal.App.4th at p. 1137.)
Similarly, Sarah and James do not assert that they were prejudiced by any lack of
compliance with notice requirements under Code of Civil Procedure section 1005,
subdivision (b), or by improper service under Code of Civil Procedure section 1013,
subdivision (e). Christopher served his motion for attorney fees on opposing counsel on
October 22, 2013. Sarah and James filed a response (on the correct form) on October 30,
claiming that proper service should have been made either in person on October 22 or by
mail on October 16, and that they never stipulated to receive service by facsimile. The
hearing on the motion was held on November 13. Sarah and James were present,
represented by counsel, and had an opportunity to be heard. There is no procedural error
requiring reversal. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)
34
IV
THE APPEAL IS NOT FRIVOLOUS
" '[A]n appeal should be held to be frivolous only when it is prosecuted for an
improper motive—to harass the respondent or delay the effect of an adverse judgment—
or when it indisputably has no merit—when any reasonable attorney would agree that the
appeal is totally and completely without merit.' " (In re Reno (2012) 55 Cal.4th 428, 513,
quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) "However, any
definition must be read so as to avoid a serious chilling effect on the assertion of litigants'
rights on appeal. Counsel and their clients have a right to present issues that are arguably
correct, even if it is extremely unlikely that they will win on appeal. An appeal that is
simply without merit is not by definition frivolous and should not incur sanctions." (In re
Marriage of Flaherty, at p. 650.)
While appellants' counsel would benefit by reviewing the standards of appellate
review (see, e.g., In re Michael G. (2012) 203 Cal.App.4th 580, 595; People v. Watson
(1956) 46 Cal.2d 818, 835-838), an appeal is not frivolous if any of the legal points raised
are arguable on their merits. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 649,
citing Anders v. California (1967) 386 U.S. 738, 744.) This appeal raises a substantial
question of whether a court exceeds its jurisdiction when it issues a temporary visitation
order on dismissal of a section 7822 proceeding. While the record fully supports the
court's finding that the section 7822 petition was frivolous, we cannot conclude that all of
the issues raised on appeal completely lacked merit. We therefore reject Christopher's
35
argument that Sarah and James's appeal is frivolous and deny his request that we impose
sanctions on appellants on that basis.
DISPOSITION
The judgment and orders are affirmed. Respondent is entitled to costs on appeal.
(Rule 8.278(a).)
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
36
AI Brief
AI-generated · verify before citing
Holding. The court properly denied the petition to terminate parental rights because there was substantial evidence that the father did not intend to abandon his children, and the court acted within its discretion to issue temporary visitation orders to maintain the parent-child relationship during the pendency of the proceedings.
Issues
Whether there was substantial evidence to support the finding that the father did not intend to abandon his children under Family Code section 7822.
Whether the trial court had jurisdiction to issue temporary visitation orders during the pendency of a section 7822 proceeding.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The court reasonably concluded that the petitioners did not meet their burden to show, by clear and convincing evidence, that Christopher left the children with Sarah for a period of one year without any provision for support or without communicating”
“In the exercise of the court's jurisdiction under the Family Code, if the course of proceeding is not specifically indicated by statute or these rules, any suitable process or mode of proceeding may be adopted by the court”