In re Izaiah W. CA1/4

Filed 10/30/26 In re Izaiah W. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re Izaiah W., a Minor. Ruth D. et al., A174110 Plaintiffs and Respondents, (Solano County v. Super. Ct. No. AD2300020) E.G., Objector and Appellant. E.G., the mother of minor, Izaiah W. (Izaiah), appeals from the trial court’s judgment granting a petition to declare Izaiah free from E.G.’s parental custody and control filed by Izaiah’s guardians, E.G.’s mother, Ruth D. (Ruth), and Ruth’s partner, Robin T. (Robin).1 On appeal, E.G. contends that the trial court’s order was an abuse of discretion. She claims she presented evidence rebutting the statutory presumption of an intent to abandon, and that, without the presumption, Ruth and Robin failed to 1 The petition also asked the court to declare Izaiah free from the parental custody and control of his father, but the trial court bifurcated the father’s case. 1 demonstrate intent to abandon by clear and convincing evidence. We affirm. I. BACKGROUND In December 2011, E.G. gave birth to Izaiah when she was 19 years old. Weeks after Izaiah was born, E.G. and Izaiah moved in with Ruth (E.G.’s mother) and Robin (Ruth’s partner). In October 2015, when Izaiah was three years old, Ruth and Robin were appointed as his guardians with E.G.’s consent.2 In 2020, during the COVID-19 pandemic, E.G. left Izaiah (who was eight years old) with Ruth and Robin and moved in with her boyfriend, DeMario G. (DeMario). In April 2022, there was a disagreement between DeMario, Ruth, and Robin. After the disagreement, E.G. was “upset” at Ruth and Robin, and E.G. limited her contact with Ruth and Robin because of the disagreement.3 2 According to E.G., she “was always told the guardianship was for [her] to get on track, . . . but eventually there was going to be an end to the guardianship.” 3 According to DeMario, Ruth and Robin were “trying to control the parameters of [his] proposal to [E.G.]” and wanted to have the proposal at their residence. They set a date for Ruth, Robin, DeMario, and his mother to do a walk through of their property, but, on the day they were set to meet, Ruth repeatedly asked to change the time. DeMario “became frustrated because . . . Ruth and Robin were being disrespectful to not only [his] time but [his] mother’s time,” and he “simply stopped responding.” After not responding for several days, DeMario answered their call. Robin and Ruth began to scream at him, repeatedly cut him off, and called him a liar, and Robin banned him from their property. 2  In December 2022, E.G. married DeMario.4 In January 2023, E.G. gave birth to a daughter, A.G. In April 2023, E.G. filed a petition requesting the termination of Izaiah’s guardianship. In May 2023, Ruth and Robin filed a petition to declare Izaiah free from parental custody and control. Over the course of multiple days in March 2024, September 2024, and April 2025, Robin, Ruth, E.G., DeMario, and other witnesses testified at trial. E.G. testified that she did not pay Ruth and Robin any child support from October 2015 (when Ruth and Robin were appointed guardians) to May 2023 (when Ruth and Robin filed a petition to declare Izaiah free from parental custody and control), even though she was working from 2020 to 2022. E.G. testified about a document she described as a “timeline . . . of when [she] was able to either visit or communicate with I[z]aiah via text, FaceTime, [or] phone calls.”5 Asked to read from the timeline, she stated: “ ‘September 13, 2022, reached out via text.[6] September 17, 2022, call with Isaiah. . . . [¶] October 4, 2022, call with Isaiah. . . . November 25, 4 Izaiah did not attend E.G.’s wedding. 5 The timeline was part of an exhibit that Ruth and Robin moved to admit, but the trial court sustained E.G.’s objection to the admission of the exhibit. 6 On September 13, 2022, E.G. sent a text message to Ruth stating, “hello hope all is well. wanted to see if you guys had some free time today. i wanted to say hi to [Izaiah.]” 3 2022, call with Isaiah.[7] November 28, 2022, call with Isaiah.[8] . . . December [XX], 2022, visit with Isaiah.’ ”9 E.G. testified that, during the six-month period from September 2022 through February 2023 (the statutory period), she had “[j]ust one visit” with Izaiah. During the statutory period, she had four calls with Izaiah; one in September, one in October, and two in November. E.G. never sent Izaiah any letters or cards. E.G. testified that, while pregnant, she “had a team of doctors and . . . was advised by all of them to limit the amount of stress,” and, to avoid stress, she “limited . . . contact with the guardians” which, in turn, limited her communication with Izaiah. E.G. testified that “having to choose between . . . [her] new family and I[z]aiah . . . was very difficult.” E.G. admitted that, during her pregnancy, she continued to work through her third trimester, she planned a wedding, and she got married. E.G. testified that A.G. was born in January 2023. E.G. never sent any pictures or videos of A.G. to Izaiah. E.G.’s first visit with Izaiah in 2023 was in March. On June 4, 2025, the trial court issued a final statement of decision. The trial court “found the testimony of [Ruth and Robin] to be credible.” The trial court “found the testimony of [E.G.], [DeMario], and [E.G.’s] mother-in-law to be less credible” because “[t]heir testimony was inconsistent with that of each other and that of [Ruth and Robin]” and 7 On November 25, 2022, E.G. sent a text message stating, “im at work. ill be off in 30 mins,” and Ruth replied, “No Worries. I dialed you accidentally. But you can call when you get off.” 8 On November 28, 2022, Ruth sent E.G. a text message asking what time she was “off,” E.G. replied, “i just got off,” and Ruth replied, “We are home if you have time to call.” 9 We have obscured this date because it is Izaiah’s birth date. 4 “was uncorroborated and inconsistent with the exhibits admitted into evidence.” The trial court found that E.G.’s failure to “provide child support during the statutory period . . . creat[ed] a rebuttable presumption of the intent to abandon.” The trial court “conclude[d] that the 5 times [E.G.] contacted [Izaiah] during the 6-month period [were] not meaningful efforts, but only token efforts to communicate with him.” The trial court stated that “testimony by [E.G.] and text messages admitted into evidence support a finding that . . . it was . . . Ruth . . . who initiated some of the contact between [E.G.] and [Izaiah] during the relevant period.” The trial court rejected E.G.’s argument that “she had limited contact with [Ruth and Robin] and [Izaiah] because of her high-risk pregnancy and concern for her stress, thus rebutting the presumption of abandonment.” The trial court stated that E.G.’s “pregnancy and stress concerns may have possibly limited her in-person contact with [Izaiah], but does not excuse her [from her] duty to communicate with him by other means which did not require her to have contact with [Ruth and Robin].” The trial court stated that E.G. “could have communicated with him by sending him cards and/or letters during her pregnancy, photos or videos of his new baby sister.” The trial court stated that “[t]he evidence presented was contrary to this assertion[;] she planned her wedding, got married, and continued to work through her third trimester.” The trial court “[found] based on clear and convincing evidence, that [Izaiah] was left with no contact and no financial support for over a six (6) month period.” The trial court “[found] that based on the lack of contact and financial support, there is an inference of an intent to abandon [Izaiah] 5 pursuant to Family Code section 7822.” The trial court found E.G. did not rebut the presumption of abandonment. The trial court granted the petition as to E.G. and “declare[d] [Izaiah] freed from [E.G.’s] custody and control.” E.G. appealed. II. DISCUSSION A. Legal Standards “Section 7822 provides a . . . mechanism for terminating parental rights based on a parent’s voluntary abandonment of a child.” (In re Aubrey T. (2020) 48 Cal.App.5th 316, 325.) “An interested person may file a petition . . . for an order or judgment declaring a child free from the custody and control of either or both parents” under certain circumstances (Fam. Code, § 7841, subd. (a)), including if a “child has been left by both parents or the sole parent in the care and custody of another person for a period of six months without any provision for the child’s support, or without communication from the parent or parents, with the intent on the part of the parent or parents to abandon the child.” (Fam. Code, § 7822, subd. (a)(2).) “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.” (In re E.M. (2014) 228 Cal.App.4th 828, 839.) In determining whether a parent intended to abandon a child, “the court ‘must objectively measure the parent’s conduct, “consider[ing] not only the number and frequency of his or her efforts to communicate with the child, but the genuineness of” the parent’s efforts.’ ” (In re Aubrey T., at p. 327.) “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 6 the parent or parents.”10 (Fam. Code, § 7822, subd. (b).) “[T]oken efforts will not overcome this statutory presumption.” (Adoption of A.B. (2016) 2 Cal.App.5th 912, 923.) A trial court’s finding of abandonment must “be supported by clear and convincing evidence.” (See Fam. Code, § 7821 [“A finding pursuant to this chapter shall be supported by clear and convincing evidence, except as otherwise provided”].)11 “[F]ailure to provide support, or failure to communicate is presumptive evidence of the intent to abandon.” (Fam. Code, § 7822, subd. (b).) “[W]hen a party challenging the existence of section 7822’s presumption of an intent to abandon presents evidence of its nonexistence, the presumption disappears and the court must find the requisite intent ‘without regard to the presumption’ and ‘with no change in the allocation in the burden of proof.’ ” (In re Aubrey T., supra, 48 Cal.App.5th at p. 327.) “ ‘ “The questions of abandonment and of intent . . . , including the issue of whether the statutory presumption has been overcome satisfactorily, are questions of fact for the resolution of the trial court.” ’” (Adoption of A.B., supra, 2 Cal.App.5th at p. 922.) On appeal, when a parent challenges a trial court’s factual finding that the presumption has not been overcome, “[t]he question is whether there was substantial evidence to support the . . . court’s finding that [the parent] failed to overcome that presumption.” (See In re Aubrey T., supra, 10 “In the event that a guardian has been appointed for the child, the court may still declare the child abandoned if the parent or parents have failed to communicate with or support the child within the meaning of this section.” (Fam. Code, § 7822, subd. (b).) 11 “The standard of proof known as clear and convincing evidence . . . ‘requires a finding of high probability.’ [Citations.]” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 998 (O.B.).) 7 48 Cal.App.5th at p. 328.) “[A]n appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard.” (O.B., supra, 9 Cal.5th at p. 1011.) “[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.” (Id. at pp. 995–996.) “[A]n appellate court reviewing a finding made pursuant to the clear and convincing standard does not reweigh the evidence itself.” (Id. at p. 1008.) “Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at p. 996.) B. Analysis As an initial matter, we note that E.G. does not, and could not, contend on appeal that the trial court erred in finding that her failure to “provide child support during the statutory period . . . creat[ed] a rebuttable presumption of the intent to abandon.” Under the statute, “failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon.” (Fam. Code, § 7822, subd. (b).) It is undisputed that E.G. did not give Ruth and Robin any money for Izaiah’s support during the statutory period even though she was working in 2022, and, on appeal, E.G. does not offer any excuse for not doing so. Rather, E.G. contends that she rebutted the presumption by presenting evidence that her five contacts with Izaiah (one visit and four 8 calls) during the six-month statutory period were not token efforts because her “limited contact with Izaiah . . . was the result of the ongoing family conflict, petitioners’ refusal to permit unsupervised contact, and pregnancy-related stress—not parental indifference.” We are not persuaded. For the reasons discussed below, we conclude that the record as a whole contains substantial evidence from which a reasonable fact finder could have found by clear and convincing evidence that E.G. failed to overcome the presumption that she intended to abandon Izaiah. (See O.B., supra, 9 Cal.5th at pp. 995–996.) To begin with, a reasonable fact finder could have found that medical advice to limit stress was not truly a cause of E.G.’s limited contact with Izaiah during the statutory period. During trial, E.G. claimed that she “had a team of doctors and . . . was advised by all of them to limit the amount of stress,” and, to avoid stress, she “limited . . . contact with the guardians” which, in turn, limited her communication with Izaiah. But the trial court found that there was “evidence . . . contrary to” her assertion of “pregnancy and stress concerns.” Specifically, E.G. admitted that, during her pregnancy, she continued to work through her third trimester, she planned a wedding, and she got married. A reasonable fact finder could also have found that, because, while pregnant, E.G. was capable of tolerating the stress of working and chose to tolerate the stress of wedding planning and getting married, she was capable of tolerating the stress of communicating with, or being in the presence of, Ruth and Robin so that she could have contact with Izaiah, but she chose not to do so. Furthermore, based on the text messages that were admitted during trial, a reasonable fact finder could have found that communicating with Ruth and Robin to arrange calls with Izaiah was not so stressful that doing 9 so would have been contrary to medical advice. For example, on September 13, 2022, any stress did not deter E.G. from sending a text message to Ruth stating, “hello hope all is well. wanted to see if you guys had some free time today. i wanted to say hi to [Izaiah.]” Nor did stress deter E.G. from exchanging text messages on November 25, 2022, when E.G. sent a text message stating, “im at work. ill be off in 30 mins,” and Ruth replied, “No Worries. I dialed you accidentally. But you can call when you get off.” Nor did stress deter her from exchanging text messages three days later, when Ruth asked her what time she was “off,” E.G. replied, “i just got off,” and Ruth replied, “We are home if you have time to call.” Based on these text messages in the record, a reasonable fact finder could have found that any stress caused by communicating with Ruth and Robin to arrange calls with Izaiah was not intolerable. Even assuming that family conflict made contact with Ruth and Robin stressful and Ruth and Robin’s refusal to permit unsupervised contact made visits stressful, the record contains substantial evidence from which a reasonable fact finder could have found that such stress was not truly a cause of E.G.’s limited contact with Izaiah during the statutory period. As the trial court observed, while her “pregnancy and stress concerns may have possibly limited her in-person contact” with Izaiah, they did not excuse her from “her duty to communicate with him by other means which did not require her to have contact with the Petitioners.” Specifically, E.G. “could have communicated with him by sending him cards and/or letters.” Because E.G. chose not to send cards or letters, a 10 reasonable fact finder could have found that E.G.’s limited contact with Izaiah was a choice.12 Based on E.G.’s five contacts with Izaiah during the six-month statutory period and the other substantial evidence discussed above, we conclude that a reasonable fact finder could have found under the clear and convincing evidence standard that E.G. failed to overcome the presumption that she intended to abandon Izaiah. (See O.B., supra, 9 Cal.5th at pp. 995–996.) 12 E.G. argues that she limited contact with Izaiah because of restrictions Ruth and Robin placed on her access to Izaiah and notes that, in In re H.D. (2019) 35 Cal.App.5th 42, the court stated that “it would be unfair to treat [the father’s] decision to prevent contact as evidence that [the] mother did not care to talk to her daughters.” (Id. at p. 53.) In re H.D. is distinguishable because, there, the “mother tried to maintain contact” but the father prevented contact because he “didn’t want the girls interacting with her.” (Id. at p. 52.) Similarly, E.G. argues that she managed to maintain some communication with Izaiah despite Ruth and Robin’s visitation constraints and notes that, in In re Aubrey T., supra, 48 Cal.App.5th 316, the father “rebutted [the] presumption with his testimony and documentary evidence showing that he visited Aubrey when permitted by [the mother].” (Id. at p. 330.) In re Aubrey T. is distinguishable because, “there were times when [the mother] refused [the father’s] requests for a visit.” (Id. at p. 329.) Along the same lines, E.G. argues that her contact with Izaiah remained subject to Ruth and Robin’s supervision and notes that, in In re E.M., supra, 228 Cal.App.4th 828, the mother established multiple conditions limiting father’s contact with children. In re E.M. is distinguishable because, there, the mother would not allow the father to see their children until he was sober for 30 days. (Id. at p. 833.) Here, while Ruth and Robin may have placed conditions on visits, including by not allowing E.G. to see Izaiah alone, E.G. does not contend that Ruth and Robin prevented her when she tried to make contact. 11  Finally, E.G. contends that the petition to terminate Ruth and Robin’s guardianship that she filed was “entirely inconsistent” with an intent to abandon. But the petition was filed in April 2023, after the six- month statutory period. As E.G. acknowledged in her opening brief, “[t]he 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.” (In re E.M., supra, 228 Cal.App.4th at p. 839.) Here, a reasonable fact finder could have found that, while evidence that E.G. sought to terminate Izaiah’s guardianship might show that she did not intend to abandon Izaiah permanently, it does not dissipate the clear and convincing evidence that she intended to abandon Izaiah during the statutory period. III. DISPOSITION The judgment is affirmed. STREETER, J. WE CONCUR: BROWN, P. J. GORDON, J.* * Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 12