Adoption of Baby Boy R.
Filed 5/23/13 Adoption of Baby Boy R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 SIX
Adoption of BABY BOY R., a Minor.
2d Juv. No. B244641
(Super. Ct.
No. A016677)
(Ventura
County)
R.G., et al.,
Plaintiffs and
Respondents,
v.
A.M.,
Defendant and
Appellant.
In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), our Supreme Court articulated what an unwed father must
do to elevate himself to the status of a "presumed father" and
thereby preclude termination of his parental
rights.
Three
years after Kelsey S. was decided,
the court made clear that an unwed father's burden arises immediately upon
learning of the pregnancy and requires "a full commitment to his parental
responsibilities - emotional, financial, and otherwise . . . ." (Adoption
of Michael H. (1995) 10 Cal.4th 1043, 1055 (Michael H.).) Here we
conclude there is substantial evidence that the unwed father did not, with
alacrity, make such a full commitment.
the unwed father of infant Baby Boy R. (now Ian), appeals the trial court's
finding that he failed to meet his burden of proving he is a presumed father
under Kelsey S. We conclude that
court's finding. Accordingly, we affirm
the judgment terminating appellant's parental rights to Ian and freeing the
child for adoption by respondents R.G. and C.G.
(Fam. Code, § 7662 et seq.)
FACTS AND PROCEDURAL HISTORY
Ian was born on Staten
Island, New York, in October
2011. Appellant is Ian's natural
father. The biological mother is M.R.,
who is not a party to this appeal. Ian
was conceived after appellant and M.R. met at a nightclub around January 1st of
2011. The two had sex the night they met,
then had sex again about two weeks later.
At the time, appellant was on parole from a 10-year New
York state prison term for first degree manslaughter.
appellant was returned to prison on a parole violation and has remained
incarcerated throughout these proceedings.
In February of 2011,
M.R. sent appellant a text message informing him that she was pregnant. Appellant had suspected that M.R. might have
gotten pregnant because his condom broke while they were having sex. Appellant texted M.R. and asked to see the
results of her pregnancy test. M.R.
responded that she would have the results delivered to him. Shortly thereafter, M.R. sent appellant a
text stating that she was planning on having an abortion.
On May 19, 2011, M.R. sent appellant a text stating,
"I thought u should know i abortd."
Appellant responded, "How do i kno u lyin? I really care if u have it.
L-O-L
i mean i don't." M.R. replied,
"its gone no lie" and appellant asked, "4 months n u
abort?" Appellant asked M.R. to
meet him the following day. M.R.
initially agreed, but changed her mind.
Appellant did not go to M.R.'s house because he knew she had a boyfriend
and that M.R. did not want him to come.
With regard to M.R.'s claim that she had an abortion, appellant
"thought the whole time that she was just lying to me and she was trying
to, like, you know, keep me close to her or something."
Appellant's mother
testified that appellant tried to get in touch with M.R. through a cousin who
knew her, but the cousin did not know where she lived. According to appellant, he tried to call M.R.
and discovered that her telephone had been disconnected. He testified that he also unsuccessfully
tried to find her on the internet.
Immediately after Ian's birth, however, appellant's aunt was able to
contact M.R. on Facebook and M.R. forwarded her telephone number.
M.R. had arranged for
Ian's adoption prior to his birth. Two
hours after the child was born, he was placed in the care and custody of
respondents and has remained with them ever since. M.R. signed an independent adoption placement
agreement and waiver of the right to revoke consent, which rendered the
agreement irrevocable as of October
13, 2011.
M.R.'s declaration
stated that she did not presently recall the name or address of the child's
father, with whom she had a "one-night stand" after meeting at a New
Year's Eve party. M.R. subsequently
identified a third party, her then-current boyfriend Merv G., as the possible
biological father. On October 14, 2011, respondents served
Merv G. with a section 7662 notice.
name="_ftnref3" title="">[3]
Respondents remained
with Ian in New York until October 20, 2011, when they received
clearance from ICPC (Interstate Compact on Placement of Children) authorities
to return with the child to their home in California. On October
26, 2011, respondents filed their adoption request in the instant
action and the matter was assigned to Judge Tari Cody.
About a week after Ian's
birth, appellant's aunt informed him that M.R. had placed the child for
adoption. Appellant testified that M.R.
also sent him an email with her telephone number. When he called, she informed him that he
"had something like 15 days to terminate the adoption or do something
about it." M.R. gave appellant her
attorney's telephone number and the telephone number for respondents' attorney. On or about October 26, 2011, appellant filed a filiation petition in
New York and summons was issued
to M.R. and respondents. Respondents
were never served, however.
On November 2, 2011, respondents personally served
appellant with a Notice of Alleged Paternity (§§ 7662-7669) in the instant
action, informing him that the court would proceed without his consent unless
he took immediate action pursuant to section 7630. The following day, appellant wrote to Judge
Cody stating that he wanted to take further action to obtain custody of Ian and
asking what steps he had to take in order to do so. Appellant also requested a paternity
test. That same day, appellant was returned
to custody for violating his parole.
On November 6, 2011, Judge Cody sent a letter to
appellant informing him that the court could not give him advice and suggesting
that he contact an attorney. On November 24, 2011, appellant wrote
Judge Cody and asked the court to appoint him an attorney.
On December 5, 2011, respondents filed petitions to
terminate the parental rights of appellant and Merv G., premised on their
belief that neither of them had brought an action to establish a parental
relationship pursuant to section 7630 within the requisite 30-day period. On January 12, 2012, the court terminated
Merv G.'s rights, appointed counsel for appellant, and granted appellant's
request for a paternity test. That same
date, respondents filed a petition to determine or terminate appellant's
parental rights and determine whether his consent to adoption was necessary
pursuant to section 7664.
name="_ftnref5" title="">[5]
On February 7, 2012, the
New York filiation petition was dismissed without prejudice after appellant
failed to appear for a second time.
Appellant did not appeal the order of dismissal.
The hearing on
respondents' section 7664 petition was held on September 28, 2012. Appellant was allowed to testify by telephone
from prison. Appellant's mother also
testified on his behalf.
At the conclusion of the
hearing, the trial court found that appellant had failed to meet his burden of
showing he promptly came forward and demonstrated a full commitment to
parenting Ian as contemplated in Kelsey
S., such that the child could be freed for adoption without appellant's
consent. The court reasoned: "[T]here really isn't much to show once
he knew that this woman was pregnant that he took any effort, other than
realizing her phone now may have changed, to locate her and to assume his
rights as a father. I realize that's not
easy to do in circumstances where you don't have a relationship with a woman
with whom you've had . . . sexual relations, but I would have expected more,
some attempt. Where is she? How do I find her? I don't know anybody, but I've contacted X,
Y, and Z to see if I can find her because if she's carrying my child I want to
know. I don't see that that effort was
made between February and May.
[¶] Then in May, although he was informed . . . that she had
had an abortion, his testimony was he wasn't sure. He didn't know whether to believe her or
not. But he . . . didn't testify that he made the efforts I
would have expected to confirm whether that had happened." The court concluded that instead of trying to
find M.R., appellant "was waiting for her to contact him. And then when he couldn't get her to respond
immediately to meet with him, his efforts stopped."
The court further
reasoned that although appellant made efforts to demonstrate his commitment to
Ian after the child's birth, "he [then] did the worst of all possible things,
which is he violated his parole and . . . his efforts then ended when he got
arrested. . . . [T]here's no way that he could have continued to satisfy
violate parole, which I'm sure he was aware of." The court deemed the case analogous in this
respect to In re Adoption of O.M. (2008)
169 Cal.App.4th 672 (O.M.), in that
father "seeks to obtain only legal custody while relegating physical
custody to his parents until he is released from a lengthy incarceration. And that does not serve the interest in
stability and continuity in a child's family life, which is a very important
public policy under Kelsey S. and,
frankly, all California law that I'm aware of." The court then proceeded to terminate
appellant's parental rights and allow the adoption to proceed without his
consent. Appellant timely appealed.
DISCUSSION
Appellant contends the
court erred in terminating his parental rights to Ian and allowing the child to
be adopted without his consent. He
claims he should be conferred the status of a presumed father under
procedures as codified in the Family Code "can impermissibly interfere
with the unwed father's constitutional rights particularly if he is required to
take certain critical steps to protect his rights without being afforded the
assistance of counsel" and that "[t]his is one such case." We are not persuaded.
The parental rights of
an unwed father depend substantially on whether he qualifies as a
"presumed father" under section 7611.
(Michael H., supra, 10 Cal.4th
at pp. 1050–1051.) A natural father is
one whose paternity has been established but who does not qualify as a presumed
father. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449, fn. 15;
fn. 3.) A child having a presumed father
cannot be adopted unless the presumed father consents, regardless of the
child's best interests. (
(a).) By contrast, "[a] natural father's
consent to an adoption of his child by third parties is not required unless the
father makes the required showing that retention of his parental rights is in
the child's best interest." (
(b).)
When a mother relinquishes
a child for adoption or consents to adoption, an identified natural father must
be given notice. (§ 7664, subd.
(a).) If the natural father claims
parental rights, the court must determine "if it is in the best interest
of the child that the father retain his parental rights, or that an adoption of
the child be allowed to proceed." (
claiming parental rights is not the father, or that if he is the father it is
in the child's best interest that an adoption be allowed to proceed, the court
shall order that the consent of that man is not required for an adoption. This finding terminates all parental rights
and responsibilities with respect to the child." (Id.
subd. (c).)
In Kelsey S., our Supreme Court recognized that the equal protection
and due process clauses of the
States Constitution guarantee an unwed, natural father the right to
withhold consent to an adoption if he meets certain conditions. "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." (Kelsey
S., supra, 1 Cal.4th at p. 849.) A
court should consider all factors to determine whether an unwed, natural
father's parental rights are entitled to constitutional protection. (Ibid.) "The father's conduct both
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."
(Ibid., fn. omitted;
1060.)
We apply the substantial
evidence test to the trial court's determination that appellant was not
entitled to the rights of a presumed father under Kelsey S. (
679–680.) In applying the substantial
evidence test, we view the evidence in the light most favorable to the trial
court's findings. (In re A.A. (2003) 114 Cal.App.4th 771, 782.) We resolve all conflicts in the evidence and
draw all reasonable inferences in favor of the judgment and do not reweigh the
evidence. (Ibid.) "To the extent
that the issue is a mixed question of law and fact, we exercise our independent
judgment in measuring the facts against the applicable legal
standard." (O.M., at p. 680.)
Substantial evidence
supported the trial court's finding that appellant was not entitled to presumed
father rights under Kelsey S. Appellant's arguments to the contrary ignore
the applicable standard of review. In
its lengthy ruling, the court noted that appellant had made at most a nominal
effort to communicate with M.R. after discovering she was pregnant. Appellant offers M.R.'s statement that she
was having an abortion as an excuse for his lack of initiative, yet the court
credited appellant's own testimony that he did not believe M.R. when she said
this. And even if he did, he told M.R.
he did not care about the child or whether she aborted it. The credibility of his assertion that he made
reasonable efforts to contact M.R. was also undermined by the fact that his
aunt was able to contact M.R. on Facebook immediately after Ian was born. In addition to the complete lack of emotional
support, appellant failed to demonstrate any financial commitment to the
child. He also violated his parole
shortly after Ian was born, thereby rendering it impossible for him to care for
the child. These facts weigh heavily in
favor of the court's finding that appellant had failed to meet his burden of
demonstrating a
prompt
and complete commitment to parenting Ian, and thus did not qualify as a
presumed father whose consent was a prerequisite to the child's adoption.
Case law is in
accord. In Michael H., the natural father initially suggested the mother have
an abortion and agreed that the child should be placed for adoption. The father offered no support to the mother
during her pregnancy. After the child
was born, however, the father's commitment to parenting the child was
"nothing short of impressive."
(10 Cal.4th at p. 1053, fn. omitted.)
The trial court found that the father's subsequent efforts were
sufficient to render him a presumed father under Kelsey S., and the Court of Appeal affirmed. (Id. at pp. 1053-1054.) In
reversing, the Supreme Court reasoned in part:
"It can scarcely be disputed that prenatal care is critically
important to both the mother and the child.
[Citations.] To the extent the
mother needs such critical assistance and the unwed father is able to provide
it, the father, as one of the two individuals responsible for the pregnancy,
should be encouraged to do so early on and should not be granted constitutional
protection after birth if he has failed to timely fulfill this
responsibility. Indeed, if unwed fathers
are not encouraged to provide prenatal assistance when they are able to do so,
the burden will often shift to the state and therefore to society
generally. [Citation.] [¶] Furthermore, if an unwed
father is permitted to ignore his parental role during pregnancy but claim it
after birth, it will often be very difficult to know with certainty whether he
will be able to successfully contest an adoption until after the child is
born. This uncertainty could well
dissuade prospective adoptive parents from attempting to adopt the children of
unwed mothers who, like Stephanie, have chosen for whatever reason not to keep
their child and raise it
themselves. And that result would frustrate the state's
clear interest in encouraging such adoptions and providing stable homes for
children. [Citations.]" (Id.
at pp. 1055-1056.)
In O.M., the natural father (B.R.) contended that his efforts to
maintain contact with the mother (L.T.) and gain legal custody of the child
after the child's birth were thwarted by L.T.'s refusal to see B.R. after she
had been pregnant for several months.
Shortly after the child was born, B.R. was sentenced to prison for
crimes he committed a month prior to the child's birth. B.R. also spent time in custody for parole
violations during the mother's pregnancy.
B.R. objected to the child's adoption and offered that his parents would
take care of the child until the father was released from prison. (169 Cal.App.4th at pp. 676-677.)
In affirming the trial
court's finding that B.R. did not qualify as a presumed father as contemplated
in Kelsey S. and Michael H., the Court of Appeal in O.M. reasoned among other things that "L.T.'s refusal to
communicate with B.R. played only a relatively small role in his failure to
qualify for Kelsey S. rights. Far more of the responsibility lies with
B.R.'s own actions in violating the law.
Thus, on the facts, this is not a case in which a biological father has
become entitled to Kelsey S. rights
by making good faith attempts to fulfill his parental responsibilities, only to
have those attempts frustrated by the unilateral actions of his child's
mother. [¶] . . . [T]he
rationale underlying the Kelsey S. requirements,
and particularly the need for timely provision to unwed mothers of 'emotional,
financial, medical or other assistance during pregnancy' [citation], militates
against affording Kelsey S. rights to
a biological father who has precluded himself from even attempting to provide
such support, through his own voluntary involvement in criminal
behavior." (O.M., supra, 169 Cal.App.4th at p. 681.) The court further explained "that in
order to be entitled to equal protection of his parental rights, an unwed father
must, '[i]n particular . . . , demonstrate "a willingness
others." [Citation.]'
[Citation.] In the present case, B.R. does not seek to
assume full custody of O.M. himself.
Rather, he seeks to obtain only legal custody, while relegating physical
custody to his parents until he is released from his present lengthy
incarceration. Such a result would not
serve the interest in 'stability and continuity in a child's family life,'
which has also been identified as an important public policy in the
Appellant is in no
better position than the natural fathers in Michael
H. and O.M. Like the father in Michael H., he did not provide any financial or emotional support
to the mother during her pregnancy.
Appellant highlights the fact that M.R. told him she was having an
abortion, yet he acknowledged he did not believe her and the court effectively
so found. Moreover, substantial evidence
supports the court's finding that appellant made little if any effort to
maintain contact with M.R. during her pregnancy. Because he made no meaningful effort to
assume his parental responsibilities until after Ian was born, the court
correctly found he does not qualify as a presumed father. (Michael
H., supra, 10 Cal.4th at pp. 1055-1056.)
Here, as in
demonstrate his commitment [to the child] was impeded to a far greater extent
by the predictable consequences of his own criminal activity" rather than
the mother's actions. (
675.) As the trial court explained with
regard to appellant, "there's no way that he could have continued to
satisfy Kelsey S. once he made a
decision to violate parole, which I'm sure he was aware of." Appellant nevertheless claims that his
incarceration should not be determinative because "there is no 'go to
prison, lose your child' provision in the law." The court in O.M. effectively disposed of this claim as follows: "We acknowledge that a number of
juvenile dependency cases . . . have upheld the rights of incarcerated parents
to retain legal custody of their children if they can arrange for their
children's care during
their
incarceration. None of these cases,
however, has held that a father who has never been in a position to form a bond
with his child in the first place, due to his incarceration, should be relieved
from the requirements that fathers must meet in order to be entitled to
supra, 169 Cal.App.4th at pp. 681-682.)
Appellant argues that
"[t]he California scheme used in this case simply places too high a burden
on indigent and incarcerated fathers to protect their parental rights. Unless they move heaven and earth and everything
in between, they will lose their children if the children's mother acts first
especially if she lies and uses deceptive practices." According to appellant, "it is a 'damn
the torpedoes, full speed ahead' attitude towards adoption in this state. If an unwed mother wants to give up her child
for adoption, there is almost nothing the unwed father can do to prevent it,
especially if he is indigent and/or incarcerated; he and his rights are
literally 'tossed under the bus.'"
To the extent appellant asserts that the procedure outlined in
process, principles of stare decisis preclude us from reaching such a
conclusion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Moreover, it is simply inaccurate
to suggest that a natural father is at the mercy of the mother in this
context. If a father can demonstrate he
would have promptly assumed his parental responsibilities but for the mother's
efforts to thwart him, he is entitled to presumed father status. (Kelsey
S., supra, 1 Cal.4th at p. 849; O.M.,
supra, 169 Cal.App.4th at p. 675.)
The court found such was not the case here, and substantial evidence
supports that finding.
To the extent appellant
makes an as-applied constitutional challenge, the
claim
was not raised below and is thus forfeited.
(Niles Freeman Equipment v. Joseph
(2008) 161 Cal.App.4th 765, 788.) In
any event, the claim fails on the merits.
Appellant was given a full and fair opportunity to assert his rights. While he complains that those rights
"cannot be undermined by some quick sleight-of-hand maneuvers that
transfer the matter from the state wherein the parents lived, conceived and
gave birth to the child," he fails to explain how his rights were so
undermined. The court appointed counsel
to represent him and allowed him to testify telephonically. Appellant alludes to ineffective assistance
of counsel, yet offers no basis for us to make such a finding. Appellant filed his own paternity action in
New York, but that action was dismissed without prejudice after appellant
failed to appear or serve the parties.
proceedings without making any jurisdictional objections. While he claims "he had every
expectation that the paternity action would be heard in California but it was
not," the claim was heard,
albeit not in the context or manner in which he may have preferred.
essentially in accord with California law with regard to an unwed father's
right to block an adoption. (See, e.g.,
N.Y.2d 387, 402 [New York law requires consent to adoption from the father of a
child born out of wedlock and placed for adoption at less than six months of
age only if the father has "promptly" asserted his interest and
"manifest[ed] his ability and willingness to assume custody of the
child"]; Adoption of
560["[t]o allow a[n incarcerated] father to simply provide for the care of
his child by means of delegating his custodial responsibility to another, is,
in effect acting only to block the adoption"].) Appellant simply offers no basis for us to
disturb the trial court's ruling in favor of respondents.
DISPOSITION
The judgment is
affirmed. The parties shall bear their
own costs on appeal.
name="_ftnref10" title="">[10]
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Tari
L. Cody, Judge
Superior
Court County of Ventura
______________________________
Christopher Blake, under
appointment by the Court of Appeal, for Defendant and Appellant.
Law Office of Gradstein
& Gorman, Jane A. Gorman and Seth F. Gorman for Plaintiffs and Respondents.
Family Code unless otherwise specified.
judicial notice of the court decisions affirming appellant's conviction and
denying his petition for a writ of habeas corpus. Aside from the fact that judicial notice was
not requested below, the facts underlying appellant's conviction are not
pertinent to the issues raised on appeal.
