In re Ty R.

Filed 12/5/07 In re Ty R. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County and petition for writ of habeas corpus, Susan D. Huguenor, Judge. Judgment affirmed; petition denied.

Kenneth B., the biological father of Ty R., appeals a judgment of the Superior Court of San Diego County terminating his parental rights. Kenneth contends the court erred by finding he is not the presumed father of Ty under Family Code section 7611,^[1]and that adoption was in Ty's best interests. In a consolidated proceeding, Kenneth petitions for writ of habeas corpus, contending his counsel was ineffective. We affirm the judgment and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Ty R. was born in August 2006 to Celeste H. Celeste did not provide the name of a father on Ty's birth certificate. At the time of Ty's birth, Celeste was married to D.M. D.M., however, had been serving time in prison in November and December 2005. During this time, Celeste engaged in sexual relations with two men, Kenneth and Tim. Kenneth was under the impression that Celeste was unable to become pregnant because she was using birth control. Kenneth did not use protection. Celeste and Kenneth ended their relationship in late December 2005. Celeste attempted to call Kenneth about two days after their breakup but Kenneth's telephone number was not in service. Kenneth did not provide Celeste with his new telephone number.

Celeste discovered she was pregnant about five to six months into her pregnancy. After Ty was born, Celeste decided to place him up for adoption through a private adoption agency. Before Ty was adopted by respondents Ed R. and Diane D., Celeste declared that Ty's biological father might be Kenneth or Tim. Ed and Diane's attorney, Mr. Volk, served the two alleged fathers with notices of paternity. Kenneth's notice is dated October 2006, but he did not receive the notice until he met Mr. Volk in late November 2006. Kenneth claims he did not receive the initial notice sent by Mr. Volk because it had been mailed to an old address.

Kenneth explained to Mr. Volk that he wanted to submit to a paternity test and he was not interested in relinquishing his parental rights to Ty. Mr. Volk advised Kenneth to obtain counsel. Ed and Diane paid for the paternity test and sent Kenneth pictures of Ty.

Kenneth wrote a letter to the trial court requesting a court-appointed attorney. He submitted to a paternity test that showed he was Ty's biological father. After receiving the test results, Kenneth did not make any efforts to contact Celeste, Ed and Diane, visit Ty or offer to pay child support. The court appointed Kenneth an attorney in January 2007.

In March 2007 the court held a contested hearing to determine whether Kenneth's status as an alleged father could be elevated to that of a presumed father. In the event Kenneth was found to be a presumed father, his consent would be needed before Ty's adoption could proceed. The court, upon the agreement of all counsel, bifurcated the issue.

Kenneth testified he engaged in sexual relations with Celeste in late 2005. He admitted he did not use contraception during the relationship. After the relationship ended, Kenneth's cell phone number changed but he believed it was Celeste's responsibility to contact him about her pregnancy. He explained Celeste could have located him because she had his mother's address. Kenneth admitted he did not try to contact Celeste after their relationship ended to find out if she was pregnant. Kenneth learned he might be Ty's father in November or December of 2006, after he received notice from the Mr. Volk. Kenneth then made arrangements to take a paternity test.

The court received Celeste's declaration in evidence. Celeste met Kenneth in 1991 and the two of them had sexual relations. As a result, Celeste became pregnant but terminated her pregnancy. She resumed relations with Kenneth in November 2005 and she did not use any form of contraception during their relationship. Celeste declared she never lived with Kenneth and the two did not attempt to marry each other before or after Ty was born. Kenneth had not paid child support or seen Ty since his birth. In October 2006 Celeste met Kenneth's friend, Michael, on a bus. Celeste told Michael she needed to reach Kenneth. Michael called Kenneth and Celeste explained to Kenneth that she had given birth to a baby and that he might be the father. Kenneth replied that he would come visit her at her house. Kenneth did not visit Celeste or have any further contact with her.

After considering the evidence and testimony presented at the contested hearing, the court found Kenneth was not Ty's presumed father and therefore, Kenneth's consent is not required in order for the adoption to proceed. The court further found adoption was in Ty's best interests. Kenneth's attorney timely filed a notice of appeal challenging the court's decision to terminate Kenneth's parental rights.

DISCUSSION

I. The Evidence Does Not Support a Finding of Kenneth's Status as a Presumed

Father

Kenneth contends the termination of his parental rights must be reversed because the court had sufficient evidence to determine that he qualified as Ty's presumed father under section 7611. He further contends the court erred by finding it was in Ty's best interests to be adopted.

A. Standard of Review

Our standard of review is the substantial evidence test. (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717-718; In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) We view the evidence in the light most favorable to the trial court's findings by drawing all reasonable inferences and resolving all evidentiary conflicts in favor of the ruling below, and we do not reweigh the evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Unless it can be said that no rational fact finder could reach the same conclusion, we must uphold the trial court's findings. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the findings or order. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B. Relevant Law

California law recognizes three types of fathers: presumed, natural, and alleged. (In re Zacharia D. (1993) 6 Cal.4th 435, 448.) A presumed father, as defined by section 7611,^[2]is entitled to appointed counsel, custody (if there is no finding of detriment) and reunification services. (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120.) A man who has been established as the child's biological parent is a natural father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) A natural father can be a presumed father, but is not necessarily one; a presumed father can be a natural father, but is not necessarily one. (Id. at p. 450, fn. 18.) A man who may be the father of the child but has not yet been established as the natural or presumed father is an alleged father. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801; In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father's rights are limited to establishing that he is entitled to presumed father status, and the juvenile court may terminate the alleged father's parental rights when the alleged father has had the opportunity to do so. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)

Presumed fathers are accorded greater rights than natural fathers because fathers who have a connection with or have shown a commitment to the child are more deserving than those whose only link is biological. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.) Under section 7611, a man is presumed to be a child's father based on the man's relationship with the mother, such as marriage or attempted marriage to the mother (see  7611, subds. (a), (b), (c)), or commitment to the child, such as acknowledging paternity and providing a home (see 7611, subd. (d)). The purpose of section 7611 in dependency proceedings "is to determine whether the alleged father has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers -- the rights to reunification services and custody of the child." (In re Jerry P., supra, 95 Cal.App.4th at p. 804.)

C. Presumed Father and Kelsey S. Father Status

Kenneth did not qualify as a presumed father because he did not meet the requirements of section 7611. (See fn. 2, ante.) Kenneth was never married to Celeste, they never attempted to marry, and they did not jointly execute a voluntary declaration of paternity. ( 7611, subds. (a)-(c).) Although Kenneth held Ty out to be his child after paternity was established, he did not receive Ty into his home, both of which are required to satisfy section 7611, subdivision (d).^[3] (See Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 585.) Even after paternity was established, Kenneth did not make efforts to contact Ed and Diane, visit Ty, or provide child support.

Nor did Kenneth qualify as a Kelsey S. father. In that adoption case, the court recognized there are instances during which an unwed father may be thwarted in his attempts to establish presumed father status, such as when the mother unilaterally

prevents it. (Kelsey S., supra, 1 Cal.4th at p. 849; see also In re Sarah C., supra, 8 Cal.App.4th at p. 972.) In such cases, the juvenile court "must consider whether [the biological father] has done all that he could reasonably do under the circumstances" to show his commitment to parenting the child. (Kelsey S., supra, at p. 850, italics added.) The Supreme Court held:

"If 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. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship. Similarly, when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection . . . ." (Id. at p. 849.)

We conclude on the merits that Kenneth was not a Kelsey S. father. First, Celeste did not unilaterally prevent Kenneth from attaining presumed father status. (See In re Zacharia D., supra, 6 Cal.4th at p. 451.) Celeste attempted to contact Kenneth days after their relationship ended. Kenneth's telephone number was not in service. Admittedly, Celeste did not attempt to contact Kenneth again until October 2006. Once Celeste did reach Kenneth by telephone, she told him he might be Ty's father. Kenneth said he would come to her house and meet with her. He did not visit Celeste, make offers to provide her with child support or ask about Ty's whereabouts and well-being. Second, although Kenneth expressed an interest in Ty after paternity was established, he did not sufficiently demonstrate his commitment to his parental responsibilities to qualify as a Kelsey S. father. He did not arrange for visits or contact the adoptive parents for information about Ty. There was no evidence showing Kenneth was prevented from coming forward and assuming parental responsibilities during Celeste's pregnancy and after he was provided the notice of paternity.

"[A] biological father's 'desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause.' " (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) " ' "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." [Citation.]' " (Ibid., quoting Lehr v. Robertson (1983) 463 U.S. 248, 260.)

D. Best Interests

Kenneth also argues there is insufficient evidence to support the trial court's finding that it was in Ty's best interest to terminate Kenneth's parental rights and allow the adoption to proceed.

Section 7664 provides that the trial court shall determine whether it is in the best interest of the child of an unwed natural father "that the father retain his parental rights, or that an adoption of the child be allowed to proceed. The court, in making that determination, 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. If the court finds that it is in the best interest of the child that the father should be allowed to retain his parental rights, it shall order that his consent is necessary for an adoption. If the court finds that . . . it is in the child's best interest that an adoption be allowed to proceed, it shall order that that person's consent is not required for an adoption. This finding terminates all parental rights and responsibilities with respect to the child." ( 7664, subd. (b).) Kenneth has the burden of proof that it would be in Ty's best interest to preserve his parental rights. (Kelsey S., supra, 1 Cal.4th at p. 825; Adoption of Michael H., (1995) 10 Cal.4th 1043, 1051-1052.)

The court found Kenneth was not a presumed father and had not achieved, or had lost through inaction, status as a Kelsey S. presumed father. The court established Kenneth as Ty's natural father and then had to determine whether he had the right to consent to or withhold consent for adoption. To do this, the court was required to apply the best interest test set forth in section 7664.

The court here concluded it was not in Ty's best interest that Kenneth retain his parental rights. Kenneth's attempts to obtain custody of Ty, as discussed above, were minimal from the time his relationship ended with Celeste and after paternity had been established. Ty had been placed with Ed and Diane since his birth and was bonded and attached to them. Ed and Diane loved Ty and remained committed to adopting him. These facts and the absence of evidence showing Kenneth had made strong efforts to establish a relationship with Ty since his birth supports the court's finding. The court properly ordered Kenneth's consent was not required for adoption.

II. Kenneth's Assertions of Ineffective Assistance of Counsel Fail

In a petition for writ of habeas corpus, Kenneth contends he was denied his right to effective assistance of trial counsel. He asserts his appointed trial counsel, Mr. Bourne, did not: (1) object to the bifurcation of issues pertaining to his presumed father status and consent for adoption, (2) object to the admission of Celeste's February 2007 declaration, (3) object to facts in the March 2007 report submitted by the adoptive parents, and (4) give Kenneth the opportunity to explain on redirect examination the answers he had provided during his cross-examination. Kenneth claims he was prejudiced as a result of these failures.

A. Legal Standard

Kenneth has the burden of proving a claim of ineffective assistance of counsel by showing: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180; In re O.S. (2002) 102 Cal.App.4th 1402, 1407; In re Arturo A. (1992) 8 Cal.App.4th 229, 237.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to [show] that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R., supra, 89 Cal.App.4th at p. 1180; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)

B. Analysis

Kenneth has not made a showing of prejudice resulting from counsel's alleged ineffectiveness. Kenneth asserts Mr. Bourne was ineffective when he did not object to bifurcating the issue of whether Kenneth could be considered a presumed father from the issue of whether his consent was necessary before Ty could be adopted. The court, before bifurcating the issues, discussed the matter with all counsel, including Mr. Bourne. Mr Bourne did not object. Even had counsel objected, Kenneth does not present evidence showing how an objection would have resulted in a more favorable outcome.

Kenneth next argues counsel did not object to the admission of Celeste's declaration and to the report submitted by the adoptive parents. He asserts Mr. Bourne should have challenged the contents of these documents. Again, Kenneth does not show how this alleged failure would have resulted in a more favorable outcome. Even though Mr. Bourne did not object explicitly to the admission of these documents, he did present evidence that was contrary to these documents when he conducted Kenneth's direct examination and, later, the cross-examination of Celeste. Thus, no prejudice to Kenneth resulted from Mr. Bourne's alleged failure to object to bifurcation or the submission of documents in evidence.

Finally, Kenneth argues Mr. Bourne did not properly develop his testimony on direct examination. Specifically, Kenneth claims that several of his affirmative responses to questions presented on cross-examination were not further explored by Mr. Bourne on redirect examination. As a result, Kenneth believes evidence that would have supported his position never surfaced at trial. However, Kenneth does not show what evidence should have been presented or how the evidence would have resulted in the court finding him to be a presumed father under section 7611. Accordingly, we reject Kenneth's arguments.

DISPOSITION

The judgment is affirmed. The petition is denied.

NARES, Acting P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] All statutory references are to the Family Code.

^[2] Section 7611 reads in pertinent part: "A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: [] (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. [] (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [] (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. [] (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. [] (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: [] (1) With his consent, he is named as the child's father on the child's birth certificate. [] (2) He is obligated to support the child under a written voluntary promise or by court order. [] (d) He receives the child into his home and openly holds out the child as his natural child."

^[3] In addressing these two requirements, courts have considered various factors, including whether the man actively helped the mother in prenatal care, whether the man sought to have his name placed on the birth certificate, whether and for how long the man cared for the child, unequivocal evidence that the man had acknowledged the child as his own, and whether the man provided for the child after he or she no longer resided with him. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.); In re Tanis H. (1997) 59 Cal.App.4th 1218, 1228-1230; In re Sarah C. (1992) 8 Cal.App.4th 964, 974-975; In re Spencer W., supra, 48 Cal.App.4th at pp. 1653-1654.)