Adoption of Jayden M.

Filed 2/26/08 Adoption of Jayden M. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, John L. Henning, Judge. Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.

Law Office of Gradstein & Gorman, Seth F. Gorman and Jane A. Gorman for Plaintiffs and Respondents.

Law Office of Gerald Klausner and Gerald Klausner for Minor.

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This is an adoption proceeding in which the trial court denied the biological fathers request for presumed father status, terminated his parental rights, and freed the child for adoption. We affirm.

FACTS

Roosevelt J. regularly patronized a Michigan club where Kelly M. worked as a stripper. They had a relationship, and both used drugs. Kelly got pregnant, decided to give up the child for adoption, found a prospective adoptive couple (Bruce and Kathleen R.) in California, moved here, and in December 2005 gave birth to a baby boy (named Jayden M. at birth but called Benjamin by Mr. and Mrs. R.). Jayden was placed with Mr. and Mrs. R., and (about a week later) Kelly returned to Michigan.

The day after Jayden was born, Mr. and Mrs. R. filed a petition to adopt him. (Fam. Code, 8714.)[1] On the same day, Kelly filed a petition to determine Roosevelts parental rights and whether he would have to consent to the adoption ( 7662), alleging that he was possibly Jaydens biological father and that he knew about her pregnancy. In Michigan, Roosevelt was served with the petition in mid-January.

On January 27, 2006, in Michigan, Roosevelt filed an action to determine his paternity and for custody. Roosevelt served notice of his action on Kelly, but not on Mr. & Mrs. R., and he did not inform the Michigan court that adoption proceedings were pending in California. Instead, he alleged, falsely, that Jaydens primary residence was in Michigan with him. In exchange for drugs, Kelly signed a stipulated paternity and custody order.

In March, in the California case, the Department of Children and Family Services approved Jaydens adoption by Mr. And Mrs. R., subject to the termination of Roosevelts parental rights. In June, Roosevelt appeared in the Los Angeles case and counsel was appointed to represent him. The court ordered him to submit to paternity testing, which confirmed that he is Jaydens biological father.

In April, in Michigan, the court rendered a judgment of filiation based on the stipulated judgment, finding that Roosevelt was Jaydens biological father, that Roosevelt was to have physical custody, and that Roosevelt and Kelly were to have joint legal custody. Mr. and Mrs. R. had no notice at all about the Michigan proceedings and thus did not learn about the judgment until they were in court in Los Angeles in June to finalize the adoption -- at which point Roosevelt appeared with copies of the Michigan papers.

On June 22, in Michigan, Mr. And Mrs. R. filed a motion to vacate the Michigan judgment on the ground that it was based on Roosevelts misrepresentations. The motion was granted in October.

In Los Angeles, a hearing was held during February and March 2007 to determine Roosevelts parental rights, and the court ultimately found that Roosevelt had failed to demonstrate that he was Jaydens presumed father. Roosevelts parental rights were terminated, freeing Jayden for adoption.

Roosevelt appeals.

DISCUSSION

Roosevelt contends that, under the standards announced in Adoption of Kelsey S. (1992) 1 Cal.4th 816, he is Jaydens presumed father, and his parental rights should not have been terminated. We disagree.

A.

The primary question in Kelsey S. was whether the father of a child born out of wedlock may properly be denied the right to withhold his consent to his childs adoption by third parties despite his diligent and legal attempts to obtain custody of his child and to rear it himself, and absent any showing of the fathers unfitness as a parent. [The Supreme Court held] that, under these circumstances, the federal constitutional guarantees of equal protection and due process require that the father be allowed to withhold his consent to his childs adoption and therefore that his parental rights cannot be terminated absent a showing of his unfitness . . . . (Adoption of Kelsey S., supra, 1 Cal.4th at p. 821.)

More specifically, the court held that the mother cannot unilaterally preclude her childs biological father from becoming a presumed father and thereby permit the state to terminate his parental rights on nothing more than a showing of the childs best interest. 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. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.)

In deciding whether the father is entitled to presumed father status, the court must consider his conduct both before and after the childs birth. 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 fathers 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. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.)

Where, as here, a trial court finds that the biological father is not entitled to presumed father status, the only question on appeal is whether that decision is supported by substantial evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) The fact that there may be evidence to support the opposite conclusion is legally irrelevant. (Ibid.; and see In re A.A. (2003) 114 Cal.App.4th 771, 782.)

B.

Although Roosevelt testified to facts that, if believed, would have supported a decision in his favor, the trial court did not believe a word he said, explaining: [Roosevelt] comes to this court and lies repeatedly under oath. [] I call you a liar . . . to your face. The record will so reflect as to your credibility in this case. And you are a liar in every aspect of your testimony. This credibility call is binding on appeal. (In re Spencer W., supra, 48 Cal.App.4th at p. 1650.) More to the point, the evidence accepted by the trial court amply supports its decision that Roosevelt is not entitled to presumed father status.

Roosevelt was indeed involved during Kellys pregnancy, but only to provide her with crack cocaine and other drugs (knowing she was pregnant). He once or twice offered her $10 or $20, but did not otherwise provide for her during her pregnancy (as he put it himself, the state was taking care of her). He never accompanied her to her doctors appointments, did not know anything about the medical problems she had while pregnant, and did not offer to take Kelly into his home. He did not tell his family about the baby (before or after his birth) or otherwise formally acknowledge Jaydens existence -- until after he knew someone wanted to adopt the child, leaving the trial court and us to draw our own inferences from the timing of Roosevelts efforts to involve himself in Jaydens life.

This is not a close case. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849; Adoption of Michael H. (1995) 10 Cal.4th 1043.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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