Adoption of A.G.

Filed 8/31/09 Adoption of A.G. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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T. D., biological father of the infant minor A. G., appeals from an order terminating his parental rights and freeing the minor for adoption by prospective adoptive parents J. G. and S. L. (respondents). T. D. contends the trial court erred by finding he is not entitled to withhold consent to the adoption under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

T. D. and T. L. (mother), the unwed biological parents of A. G., separated before A. G. was born. On the date of A. G.s birth (in July 2008), T. L. gave A. G. up to respondents, whom T. L. had met through her doctor. Respondents have raised A. G. as their child ever since.

A week and one-half to two weeks after A. G.s birth, T. D. filed papers in Kern County seeking to establish paternity and gain information about A. G.s whereabouts. The pleadings from that action are not in the record.

On August 20, 2008, respondents filed a request for adoption in Yolo County, where they live (case No. SA0859), attaching T. L.s signed agreement to adoption.

After being served with the adoption request, on September 3, 2008, T. D. filed a petition to establish parental relationship, requesting custody and visitation of A. G. and a change of venue to Kern County (case No. SF081693).

On October 3, 2008, respondents filed an application for joinder, consolidation of the two proceedings, and a stay of T. D.s petition pending the resolution of the adoption proceedings. Simultaneously, they filed a petition to terminate parental rights of an alleged natural father (case No. SA0859).

On October 6, 2008, the Yolo County Superior Court granted respondents request to consolidate the cases and to join them as parties in case No. SF081693, deemed T. D.s petition in case No. SF081693 the answer in case No. SA0859, and ordered paternity testing. The court thereafter found T. D. was A. G.s biological father and appointed counsel for him.

On November 21, 2008, respondents filed a petition for appointment of guardian of the person, requesting they be appointed legal guardians of A. G. if T. D. blocked the adoption (case No. PG08240).

On December 17, 2008, the superior court appointed respondents temporary guardians of A. G., with visitation for T. D., and set the matter for hearing on all issues on January 5, 2009. Also on December 17, 2008, T. D. filed a notice of motion to withhold consent to the adoption.

The matter came on for court trial on January 5, 2009. T. `D., T. L., and respondents testified, as did the mothers of both biological parents and psychologist Donald Siggins.

After trial, the trial court issued a tentative decision terminating T. D.s parental rights and finding his consent to adoption was not required. T. D. filed objections to the tentative decision. The court thereafter filed a statement of decision which noted T. D.s objections but reaffirmed the tentative decision.

Because the statement of decision clearly sets out the relevant facts and law, we quote it essentially in full, as follows:

DECISION

1. Paternity of [A. G.]: While [T. D.] is [A. G.]s biological father, [T. D.] is not [A. G.]s presumed father;

2. Termination of [T. D.]s Parental Rights and Adoption of [A. G.]: [T. D.]s parental rights and responsibilities with respect to [A. G.] are terminated, and his consent is not required for [respondents] to adopt [A. G.]; and

3. [T. D.]s Constitutional Rights to Block [A. G.]s Adoption: [T. D.] has no constitutional right to withhold his consent to [A. G.]s adoption.

FINDINGS AND CONCLUSIONS

A. Paternity of [A. G.].

The Uniform Parentage Act (Fam. Code,^[[1]^] 7600 et seq.) creates three classifications of parents: mothers; biological fathers who are presumed fathers; and biological fathers who are not presumed fathers, who are referred to as natural fathers. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 [(Michael H.)]; . . . Kelsey S.[, supra,] 1 Cal.4th [at p.] 825.) Under the Act, an unwed fathers rights with respect to the adoption of his child depends on whether he is a presumed father. [(Michael H., at p. 1051; Kelsey S., at p. 825.)]

Under . . . section 7611, a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both receives the child into his home and openly holds out the child as his natural child. ( 7611, subd. (d).) Attempted receipt of the child into ones home will not suffice under section 7611; physical receipt is required. (Kelsey S., supra, 1 Cal.4th at pp. 825-830; Michael H., supra, 10 Cal.4th at [p.] 1051.)

The Court finds that [T. D.] is [A. G.]s biological father based on the stipulation of the parties.

Because [T. D.] did not . . . attempt to marry [A. G.]s mother (see 7611, subd. (b)), and he never physically brought [A. G.] into his home, the Court finds that [T. D.] is not [A. G.]s presumed father.

B. Termination of [T. D.]s Parental Rights and Adoption of [A. G.].

If a man is a presumed father, a third party generally cannot adopt his child unless both he and the mother consent. ( 8604-8606.) If a man is not a presumed father, however, the mothers consent is still required in most cases (ibid.), but the fathers consent is not required unless he successfully petitions to block the adoption and establish his legal status as the childs father. ( 7630, 7662.)

If the Court finds that it is in the best interest of the child that the father retain his parental rights, it must enter an order providing that his consent is necessary for an adoption. ( 7664, subd. (b).) In making this determination, the court may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child. (Ibid.) If, however, the court finds that it is in the best interest of the child to be adopted by the prospective adoptive parents, it must enter an order stating that the fathers consent is not required. (Ibid.) This order also terminates all [the fathers] parental rights and responsibilities with respect to the child. (Ibid.; Michael H.[,] supra, 10 Cal.4th at pp. 1051-1052.)

At trial, the following facts were established as to whether it would be in [A. G.]s best interest for [T. D.] to retain his parental rights:

(1) [T. D.], 25, has one-and-a-half years of college education. [T. D.] moved in with [T. L.] because he was evicted from his residence and needed a place to stay. While he is currently employed, while he was living with [T. L.], he was terminated from his employment. When [T. D.] learned [T. L.] was pregnant in December, 2007, they were still living together. Though [T. L.] hoped they would marry and raise [A. G.] together, their relationship deteriorated because [T. D.] did not want to marry her and he was not paying his share of their living expenses as he had promised.

(2) After their separation, [T. D.] and [T. L.] had limited communication by telephone and text message. They never made any plans for how [A. G.] would be cared for, and when [T. D.] moved out in March, 2008, he had no plans for caring for [A. G.] He only assumed that [A. G.] would live with [T. L.], and he would sometimes have her. After [T. D.] moved out, he offered [T. L.] no financial assistance, even though he was employed at that time. He did not know whether [T. L.] had medical insurance, and he did not assist her with any pregnancy-related expenses, such as prenatal vitamins. He attended only three or four doctors appointments with [T. L.], and after he moved out, he never stopped by to check on her.

(3) [T. D.] has two children in addition to [A. G.], boys aged three and four, who live with their mother and for whom he provides support. [T. D.] pays less child support for his two sons than the court ordered because he claims to be financially unable to pay the ordered amount. However, he has never sought a modification of the order.

(4) If [T. D.] were to obtain custody of [A. G.], he plans to raise her with the assistance of [T. L.]s mother. Alternatively, he would move to Los Angeles, where he would raise [A. G.] with his familys assistance. However, [T. L.]s mother has recently completed the educational requirements that would enable her to accept a better employment position. [T. D.] was uncertain whether [T. L.]s mother would have the same ability to care for [A. G.] if she took a new position. He admitted that he did not know how much daycare for [A. G.] would cost.

(5) [T. D.] has admitted that his uncle attempted to molest him as a child. [T. L.] testified that [T. D.] was molested and he expressed fear that he would engage in similar behavior toward his own children. While [T. D.] denied that he expressed concern about his potential behavior, the Court did not find his testimony credible.

(6) In the more than six months since [A. G.] was born, [T. D.] has visited her on only two occasions for a total of approximately four hours. [T. L.]s mother has seen her once.

(7) In or after March, 2008, [T. L.] told [T. D.] she intended to put [A. G.] up for adoption and he agreed. When [T. L.] spoke to [T. D.] about adoption three or four times, he never stated any objection to the adoption. According to [T. L.], [T. D.] and [T. L.] agreed that they would tell his family members that the baby died so he would not have to answer questions from family members, who were religious and opposed to adoption. [T. D.] told [T. L.] she could do whatever she wanted; he just did not want to deal with his family. While [T. D.] testified otherwise, the Court did not find him credible.

(8) [T. D.] lived with [T. L.] and her four-year-old daughter for seven months. During that time, although [T. D.]s sons were living nearby and were close in age to [T. L.]s daughter, he brought his sons to their home only twice. When asked about [T. L.]s daughters relationship with him, he said she was kind of comfortable with [him], but thats about it. He admitted their relationship was not close, and when he moved out, [T. L.]s daughter was not hurt by his absence. According to [T. L.], during the entire seven months, [T. D.] was never alone with her daughter.

(9) [A. G.] has resided with [respondents] since her birth. They are both correctional officers. [J. G.] is in his 30s; [S. L.] is in her 40s. Their maturity and their devotion to [A. G.] were immediately and consistently apparent to the Court. In addition to [A. G.], they live with [S. L.]s 15-year-old son, who, by all accounts, loves [A. G.].

[S. L.] took off work for almost three months to stay home with [A. G.]. While [J. G.] and [S. L.] are working, [A. G.] stays with a neighbor three or four days a week. If the adoption occurs, [S. L.] is amenable to allowing contact between [A. G.] and her biological family.

(10) Dr. Donald Siggins, a psychologist, marriage and family counselor, [section] 730 evaluator, and family law mediator, conducted a bonding study. . . . [He concluded] it would be detrimental to [A. G.]s psychological development for her to be removed from [respondents] custody at this time.

Based on these facts, the Court finds that it has been shown by clear and convincing evidence that: (1) it is in [A. G.]s best interest to be adopted by [respondents]; (2) [T. D.]s parental rights should be terminated; and (3) his consent is not required for her adoption.

C. [T. D.]s Constitutional Rights to Block [A. G.]s Adoption.

A natural father who has no statutory right to block an adoption by withholding consent may have a constitutional right to do so under the Fourteenth Amendment due process and equal protection clauses. (Michael H., supra, 10 Cal.4th at pp. 1051-1052; Kelsey S., supra, 1 Cal.4th at pp. 848-[8]51.) If a natural father comes forward promptly and demonstrates a full commitment to his parental responsibilities, he is entitled to the same rights and protections as the mother. (Kelsey S., supra, at p. 849.) In this instance, the court may not terminate his parental rights on a showing that it is in the childs best interest that adoption proceed. (Ibid.) Instead, his parental rights may not be terminated unless it is shown by clear and convincing evidence that he is an unfit parent. (Ibid.)

In determining whether a father is entitled to constitutional protection, the court must consider the fathers conduct both before and after the babys birth. [(Kelsey S., supra, 1 Cal.4th at p. 849.)] Once the father knows of the pregnancy, he must attempt to assume his parental responsibilities promptly and as fully as the mother will allow and the circumstances will permit. In particular, he must demonstrate a willingness himself to assume full custody of the child--not merely to block adoption by others. (I[bi]d.) He cannot compensate for his failure to do so by attempting to assume his parental responsibilities months after learning of the pregnancy. (Michael H.[, supra, 10 Cal.4th] at p. 1054.) A court should also consider the fathers public acknowledgment of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. (Kelsey S.[,] at p. 849; Michael H.[,] at p. 1064.)

It is undisputed that [T. D.] told his family and announced to others that he was going to have a daughter and that he remained in contact with [T. L.]s mother during [T. L.]s pregnancy.

However, the parties dispute whether [T. D.]s pre-birth efforts were sufficient to entitle him to constitutional protection.

[T. D.]s conduct before [A. G.]s birth was highly contested, and his and [T. L.]s testimony differed significantly in many respects. In several respects, the Court found [T. D.]s testimony to be internally inconsistent. For example, initially, he testified that he and [T. L.] never talked about adoption of [A. G.]. However, later he said [T. L.] mentioned adoption to him in a text message in late June or early July. Given these discrepancies, the Court did not find [T. D.] to be a credible witness. The Court found [T. L.] more credible. To the extent there were differences in [T. D.]s and [T. L.]s testimony, the Court credits [T. L.]s version of events.

The Court incorporates herein by reference the factual findings recited in section B., subdivisions (2), (6), and (7).

Based on these facts, the Court finds that [T. D.] has not demonstrated that he was fully committed to his parental responsibilities. As a result, the Court finds that [T. D.] has no constitutional right to withhold his consent to [A. G.]s adoption.

DISCUSSION

T. D. Has Not Shown That He Meets The Standard Of

Kelsey S. On The Facts As The Trial Court Found Them

T. D. challenges only the trial courts findings with respect to his constitutional rights under Kelsey S., supra, 1 Cal.4th at page 816 and Michael H., supra, 10 Cal.4th at page 1043. His challenge fails because he does not even attempt to show that he met the Kelsey S. standard on the full facts found by the trial court. Instead, he asks us either to reject the courts credibility findings against him and make new findings in his favor, or to cherry-pick the record for allegedly uncontroverted facts favorable to him while ignoring the rest. Neither tactic can succeed on appeal.

On review of a determination under Kelsey S., we apply the substantial evidence standard. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679-680.) In other words, we examine the whole record to determine whether substantial evidence supports the judgment, drawing all reasonable inferences and resolving all evidentiary conflicts in favor of the trial courts findings, and we do not reweigh the evidence. (In re A.A. (2003) 114 Cal.App.4th 771, 782; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) Furthermore, under the substantial evidence standard, an appellant may not win reversal simply by citing the evidence favorable to him. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Therefore, we decline either to set aside the courts credibility findings or to consider the facts T. D. cites (even assuming them to be uncontroverted, which respondents do not concede) in isolation from the record as a whole.

Substantial evidence supports the judgment here. As the trial court found, T. D. did not consistently come forward to assume his full parental responsibilities during T. L.s pregnancy, which is required under Kelsey S. (Michael H., supra, 10 Cal.4th at pp. 1054-1055; Kelsey S., supra, 1 Cal.4th at p. 849.) Rather, during that time he consistently sought to avoid those responsibilities: he did not participate in planning for A. G.s future, he did not support T. L. in her pregnancy financially or otherwise, he did not object to her proposal to give A. G. up for adoption, and he told T. L. she could do whatever she wanted as far as A. G. was concerned so long as it would spare him from having to deal with his family. All this, plus the evidence that he lacked zeal for fulfilling his duties to his existing children, paints the picture of a father in biological name only. His belated efforts to assert paternal status after A. G.s birth do not meet his burden to establish his entitlement to withhold consent to the adoption. (Michael H., supra, 10 Cal.4th at p. 1054; Kelsey S., supra, 1 Cal.4th at p. 849.)

DISPOSITION

The judgment (order terminating parental rights) is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

CANTIL-SAKAUYE , J.

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[1] All further section references are to the Family Code.