In re J.M.
Filed 2/26/13 In re J.M. CA1/1
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
In re J.M., a Person Coming Under the Juvenile Court Law. | |
K.W., Plaintiff and Appellant, v. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Defendant and Respondent. | A135155 ( Super. Ct. No. 81723) |
When
J.M. (the minor) was born, her mother (Mother) was living with D.M. (D.), who
claimed the minor as his child. At age
three months, the minor was detained by the San
Mateo County Human Services Agency (Agency) after being hospitalized with
injuries suggesting abuse. During
subsequent proceedings, D. was designated the minor’s presumed father, but DNA
testing demonstrated that K.W. (K.) was her biological father. K. moved to assert a
status under Adoption of Kelsey S.
(1992) 1 Cal.4th 816 (Kelsey S.), but
the juvenile court denied the motion. We affirm.
BACKGROUND
The
minor was the subject of a dependency
petition under Welfare and
Institutions Code section 300, subdivisions (b) and (e), filed September 6, 2011. At the time of filing, the minor was three
months old. The petition alleged the
minor had been admitted to the hospital with symptoms, including seizures,
brain hemorrhaging, and bone fractures, that are telltale signs of physical
abuse. The minor’s “sole caregivers,â€
her Mother and D., “provided an explanation for the injuries that is
inconsistent with accidental trauma.â€
Amended and second amended petitions were filed in January 2012
containing materially identical jurisdictional allegations.
D.
and Mother are not married, but D. lived with Mother prior to and after the
minor’s birth, was present at the birth, and was listed as father on the birth
certificate. DNA testing, however,
eventually identified K. as the minor’s
Notwithstanding
the test results, D. continued to hold the minor out as his child, while K. had
never been a part of the minor’s life.
At a hearing in January 2012, the parties stipulated to D.’s designation
as presumed father, subject to K.’s later assertion of parental rights. At the same hearing, the juvenile court
sustained the allegations of the second amended petition without contest and
declared the minor a ward of the court.
The minor was continued in an out-of-home placement, but Mother and D.
were granted visitation and reunification services.
In
a motion filed a week later, K. sought to be named the minor’s presumed
father. While recognizing D.’s statutory
qualification for presumed father status, K. argued he was entitled to assert
the constitutional rights of a diligent biological father under
At
a March 2012 evidentiary hearing on K.’s motion, Mother and K. gave very
different accounts of the events following the minor’s conception. Mother testified she was living with K. when
she became pregnant with the minor in October 2010. As soon as she learned of the pregnancy, she
informed K., assuming the child was his.
The two began making plans for the baby, but K. moved to Los
Angeles a week later.
Although he told Mother he would be back in a few weeks, he never
returned. Mother, who felt “abandoned,â€
attempted to telephone him many times, but “he didn’t answer or he would hang
up.†After leaving for Los
Angeles, K. showed no interest in the pregnancy and
offered no financial support for Mother.
K. returned to the Bay Area in January 2011. Mother hoped to resume their relationship,
but K. was incarcerated in February.
Following K.’s incarceration, Mother heard nothing more from him.
Mother
said she began a romantic relationship with D. in November 2010, although the
two had met and had sexual relations earlier.
The relationship lasted for a time, broke off, and then resumed shortly
before the minor’s birth. During the
last month of Mother’s pregnancy, D. cared for both Mother and her older child,
who was still a toddler. D. was present
at the minor’s birth and executed a declaration of paternity. Although he was aware of the possibility the
minor was not his natural child, he and Mother continued their relationship
after the birth, planning to raise the minor together.
According
to Mother, K. made no attempt to contact her after his release from jail in
June 2011. Two months after the minor’s
birth, in August, Mother called K. from the hospital to ask whether K. had a
family history of seizures. Mother
acknowledged refusing to tell K. where the minor was and saying K. was not the
minor’s father, but she denied telling K. the minor had died.
K.
testified his romantic relationship with Mother last about 18 months, ending in
January 2011. When he found out about
the pregnancy the prior October, he was “nervous, but enthused†and planned
with Mother to create a family. Soon
after, he went to San Diego for two
weeks of job training. During that time,
they had frequent pleasant telephone conversations. When the training was over, K. took a job in Oakland
and lived with his sister in Emeryville.
While there, he tried to see Mother several times. She put him off, claiming D. was the minor’s
father. She also moved around, making it
difficult for him to find her. When he
finally saw her in January, he gave her a “diaper bag full of baby
accessories,†as well as food. He
admitted providing no other financial support.
During
his incarceration, K. often tried to contact Mother, but her telephone number
was blocked to collect calls. He did not
write Mother care of her mother’s address because he understood her mother had
moved. K. learned about the birth of the
minor soon after being released from jail in late June 2011 and tried to
contact Mother, but her telephone number had been changed. He admitted placing a post on Facebook
asserting the minor was not his child, but he said he was “heartbroken†that
Mother was excluding him from the minor’s life.
According
to K., when Mother called him from the hospital in August, she told him the
minor was having seizures, but she never asked him about his family’s medical
history. She refused to tell him which
hospital, claiming he was not the father.
Soon after, Mother left him a message saying the minor had died and
asked him not to contact her again. It
was not until December that he learned through the Agency the minor was in
foster care. When he contacted a social
worker, he insisted he was the minor’s father and sought custody.
D.
also testified at the hearing. He
explained he met Mother on the Internet in October 2010 and they had sexual
relations in November. He had no further
contact with her until May 2011. At that
time, he moved in with Mother and her grandmother, caring for Mother and her
child and sharing his government assistance money. At that time, prior to the minor’s birth, he
told others the minor was his child. He
went with Mother to the hospital for the birth and was listed as her father on
the birth certificate at his own insistence.
Following the birth, he cared for the minor, continued to share his
limited income, and treated the minor as his own child, telling others she was
his. This did not change after he
learned he was not her biological father, and D. hoped to continue to act as
her parent. He and Mother were engaged
to be married.
The
juvenile court denied K.’s motion, stating that his efforts to connect with the
minor “were less than immediate.â€
Although the court believed the “princip[al] obstacle†to K.’s uniting
with the minor was “the obdurate attitude of the child’s mother,†it found K.
also “exhibited failures of his own and immaturity of his own that suggests to
me that on the three points set forth in [Kelsey
S.] he has not demonstrated his present ability to fulfill the role of
presumed father.†Although the court
declined to remove D. as presumed father, it did order the Agency “to initiate
an investigation into the propriety of [providing reunification] services†to
K. K. was also granted visitation with
the minor pending the results of the investigation.
At
the time the appellate record closed in this matter, April 2012, Vacaville
police were reported to be conducting a criminal investigation into the minor’s
injuries. The investigators suspected D.
of having caused the injuries, but they had reached no conclusions. The record also contains two physician’s
reports contradicting the Agency’s allegations and stating the minor’s injuries
are not consistent with child abuse.
II. DISCUSSION
K.
contends the juvenile court erred in failing to grant him presumed father
status under Kelsey S. and,
alternatively, abused its discretion in failing to designate him the presumed
father on the basis of his biological paternity.
The
law of presumed fatherhood was explained in In
re J.L (2008) 159 Cal.App.4th 1010 (J.L.):
“The
Uniform Parentage Act (Fam. Code,[
§ 7600 et seq.) (Act) provides the statutory framework by which California
courts make paternity determinations.
[Citations.] Under this statutory
scheme, California law
distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation.]
‘A man who may be the father of a child, but whose biological paternity
has not been established, or, in the alternative, has not achieved presumed father status, is an “alleged†father. [Citation.]’
[Citation.] ‘A biological or
natural father is one whose biological paternity has been established, but who
has not achieved presumed father status . . .
.’ [Citation.]
“ ‘Presumed’ fathers are accorded far greater parental
rights than alleged or biological fathers.
[Citation.] Presumed
father status is governed by section 7611, which sets out several
rebuttable presumptions under which a man may qualify for this status,
generally by marrying or attempting to marry the child’s mother or by publicly
acknowledging paternity and receiving the child into his home. [Citations.]
Biological fatherhood does not, in and of itself, qualify a man for presumed father status under section 7611. On the contrary, presumed
father status is based on the familial relationship between the man and
child, rather than any biological connection.
[Citation.]
“Section
7611 also recognizes two other grounds for qualification as a presumed
father that are outside of the Act, [including execution of a
declaration of paternity]. . . . In addition, . . . an
unmarried biological father may, under narrow circumstances, assert
constitutional paternity rights, even though he does not qualify under any of
the presumptions listed in section 7611.
[Citations.]
“Occasionally
the complicated pattern of human relations gives rise to more than one
legitimate claimant to presumed father status, and the
juvenile court must resolve the competing claims. As the Supreme Court explained
. . . , ‘[a]lthough more than one individual may fulfill the
statutory criteria that give rise to a presumption of paternity, “there can be
only one presumed father.†[Citations.]’
The procedure for reconciling competing presumptions is stated in
section 7612, which provides:
a rebuttable presumption affecting the burden of proof and may be rebutted in
an appropriate action only by clear and convincing evidence. [¶] (b) If two or
more presumptions arise under Section 7611 which conflict with each other, the
presumption which on the facts is founded on the weightier considerations of
policy and logic controls.’ †(
K.,
who concededly does not qualify for presumed father status under any of the
presumptions of section 7611, seeks to assert his constitutional paternity
rights as an unmarried biological parent under Kelsey S. Again as explained in J.L.:
“Kelsey S.
was a challenge to the adoption of a newborn child of an unwed mother, which
was filed by the child’s biological father within two days after the baby’s
birth. [Citation.] In analyzing the biological father’s rights,
the Supreme Court began by observing that the Act precludes an unwed biological
father from achieving presumed father status unless he
is able to satisfy section 7611, subdivision (d) by taking the child into his
home and holding it out as his own.
[Citation.] As a result of this statutory structure, the
mother of such a child can deny presumed father status
to the biological father by giving the baby up for adoption, thereby preventing
the father from satisfying subdivision (d).
[Citation.] After extensive
discussion, the court concluded that this feature of the Act was irrational for
two reasons. First, a good potential
father could be denied parental rights by the unilateral decision of the
mother, while an unfit mother could have her rights terminated only by
statutory procedures. Second, the mother
could deny ‘a model [biological] father’ presumed father
status while permitting another man ‘of dubious ability and intent’ to achieve presumed father status merely by allowing him to live with
the child in her home for a brief period.
[Citation.] Accordingly, the
court held that, notwithstanding section 7611, ‘[i]f an
unwed father promptly comes forward and demonstrates a full commitment to his
parental responsibilities—emotional, financial, and otherwise—his federal
constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.’ [Citation.]
“The
court emphasized that its decision applied only in narrow circumstances, when
‘an unwed father . . . has sufficiently and timely demonstrated a
full commitment to his parental responsibilities.’ [Citation.] In deciding whether a
particular biological father qualifies, the court instructed juvenile courts to
consider ‘all factors relevant to that determination. The father’s conduct both before and after
the child’s birth must be considered.
Once the father knows or reasonably should know of the pregnancy, he
must promptly attempt to assume his parental responsibilities as fully as the
mother will allow and his circumstances permit.
In particular, the father must demonstrate “a willingness himself to
assume full custody of the child—not merely to block adoption by others.†[Citation.]
A court should also consider the father’s public acknowledgement 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.’ [Citation.]
“Although section 7611 makes
no provision for a Kelsey S. father in its list of presumptions, a
father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional
right to parent, which overrides any contrary statutory direction.†(J.L.,
supra, 159 Cal.App.4th at pp. 1022–1023.)
A. Kelsey S.
K.
had the burden of demonstrating the factual basis for his claim to
of O.M. (2008) 169 Cal.App.4th 672, 679.)
We review the juvenile court’s determination that he did not meet that
burden under the substantial evidence test.
(Id. at pp. 679–680.) The substantial evidence standard is “highly deferential.†(Silicon
Valley Taxpayers’ Assn., Inc. v.
to determine whether there is any substantial evidence
will support the conclusion of the trier of fact. [Citation.]
All conflicts must be resolved in favor of the respondent and all
legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent
judgment on the evidence.’ †(
335.)
Mother’s
testimony provided substantial evidence to support the juvenile court’s
determination that K. did not qualify for Kelsey
S. status. Under
required, “[o]nce [he] knows or reasonably should know of the pregnancy,â€
promptly to “attempt to assume his parental responsibilities as fully as the
mother will allow and his circumstances permit.†(Kelsey
S., supra, 1 Cal.4th at p. 849.)
According to Mother, K. left for Southern California within a week after
learning of her pregnancy. Thereafter,
she heard almost nothing from him until two months after the birth. During that time, she did nothing to prevent
him from assuming his responsibilities as the minor’s prospective parent. Yet he provided no financial or emotional
support to her, did nothing to suggest he was willing to share custody of the
baby, and took no legal action to seek custody.
pregnancy prior to the baby’s birth yet does nothing to assume parental
responsibilities until after the birth is not entitled to Kelsey S. status. (
1043, 1055.)
K.’s
argument for Kelsey S. status is
based largely on his own testimony, in vain disregard of our standard of
review. Yet even if we take K.’s
testimony at face value, it fails to satisfy Kelsey S. As K.
acknowledged, he left for Southern California soon after the pregnancy was
announced. After he returned to the Bay
Area, he provided Mother with no financial support beyond a diaper bag full of
baby items, although he was in contact with Mother, knew she needed help, and
was working at the time. While K. claims
Mother put him off by asserting he was not the father, K. was aware the minor
might be his child, since he was having sexual relations with Mother at the
time of the minor’s conception. Yet
following the minor’s birth, K.’s attempts to contact Mother were half-hearted,
and he made no attempt to prove his paternity or seek custody. On the contrary, he posted a message on
Facebook questioning, rather than acknowledging, his paternity. (Compare, e.g., Adoption of H.R. (2012) 205 Cal.App.4th 455, 468 [biological father
qualified under Kelsey S. when he
participated in prenatal care and, after being excluded by mother, filed an
action claiming paternity, obtained his own DNA test, and actively sought
physical and legal custody].) K.’s
ambivalent conduct was an insufficiently prompt and unequivocal assertion of
parental rights to qualify under Kelsey S.
B. Presumed Father Status
Regardless
of his entitlement to Kelsey S. rights,
K. appears to contend the juvenile court should have designated him, rather
than D., the presumed father on the basis of his biological parentage. Because biological parentage alone is not one
of the statutory presumptions under section 7611, it is not clear the juvenile
court could have designated K. as a presumed father over D. According to Kelsey S., a biological father who fails to qualify under section
7611 is merely a “natural father,†not entitled to the various rights of a
presumed father. (Kelsey S., supra, 1 Cal.4th at p. 825; see
544 [biological father who does not qualify as presumed father is not entitled
to reunification services, but may be granted services at court’s
discretion].) Nonetheless, because it
has recently been suggested a natural father can be considered for presumed
father status (In re P.A. (2011) 198
Cal.App.4th 974, 981), we consider the argument.
K.
waived this argument by not making it in the juvenile court. His motion for presumed father status was
based entirely on his claimed entitlement to Kelsey S. rights. As he
argued in his motion, he “does not qualify as a presumed father under the
Family Code requirements†but is a “presumed father under [Kelsey S.].†K. made no
argument he should be granted presumed father status even if he failed to
qualify for Kelsey S. rights.
In
any event, we find no abuse of discretion in the court’s refusal to select K.
as presumed father over D. K. argues
D.’s declaration of paternity is invalid, thereby disqualifying him from
presumed father status, but D.’s testimony at the paternity hearing
demonstrated he was also entitled to presumed father status under
section 7611, subdivision (d), because he “receive[d] the child into his
home and openly [held] out the child as his natural child.†(Ibid.) The validity of the declaration of paternity
is therefore immaterial.
K.
also argues the juvenile court should have denied presumed father status to D.
because he was likely responsible for the minor’s injuries. At the time of the motion, it had not been
clearly established D. had caused the injuries, let alone that he had done so
intentionally. In the absence of
persuasive evidence of intentional harm, it was reasonable for the court to
select D., proven to be a devoted father, over an uninvolved biological parent.
DISPOSITION
The
juvenile court’s orders granting presumed father status to D. and denying K.’s
motion for presumed father status are affirmed.
_________________________
Margulies,
J.
We concur:
_________________________
Marchiano, P.J.
_________________________
Dondero, J.
name="_ftn1" title="">[1] All statutory references are to the Family
Code.
name="_ftn2" title="">[2] K.
points out he was incarcerated for a portion of this time, but incarceration
does not relieve a biological father of his duties under Kelsey S. (
