California Family Code Section 7822 - Landmark Cases

A proceeding to have a child declared free from the custody and control of a parent may be brought under Family Code section 7822 if the parent has abandoned the child. Abandonment occurs when a "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 communication from the parent, with the intent on the part of the parent to abandon the child." ( 7822, subd. (a)(3).) Thus, three elements must be met: "'(1) the child must have been left with another; (2) without provision for support or communication from ... her parent for a period of one year; and (3) all of such acts are subject to the qualification that they must have been done "with the intent on the part of such parent ... to abandon the child."' ." (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1010 (Allison C.).) "'"'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 relationship and throw off all obligations growing out of the same.'" .' . Accordingly, the statute contemplates that abandonment is established only when there is a physical act - leaving the child for the prescribed period of time - combined with an intent to abandon, which may be presumed from a lack of communication or support." (In re Jacklyn F. (2003) 114 Cal.App.4th 747, 754; 7822, subd. (b) "failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon".) To overcome the statutory presumption, the parent must make more than token efforts to support or communicate with the child. ( 7822, subd. (b) "If the parent or parents have made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent"; In re B. J. B. (1986) 185 Cal.App.3d 1201, 1212.) Intent to abandon may be found on the basis of an objective measurement of conduct, as opposed to stated desire. (In re B. J. B., supra, at p. 1212.) The court may consider the frequency with which the parent tried to communicate with the child, the genuineness of the effort under all the circumstances, and the quality of the communication that occurred. (Ibid.; People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) "The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period." (In re Amy A. (2005) 132 Cal.App.4th 63, 68.) Furthermore, the one-year statutory period need not be the year immediately preceding the filing of the petition. (See Adoption of Burton (1956) 147 Cal.App.2d 125, 136 interpreting predecessor statute Civ. Code, 224; In re Connie M. (1986) 176 Cal.App.3d 1225, 1237, fn. 2 same, citing Burton.)