In re Isaac C.
Filed 4/15/11 In re Isaac C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
| In re ISAAC C., a Minor. | |
| JONATHAN L., Petitioner and Appellant, v. PETER C. et al., Objectors and Respondents. | D058518 (Super. Ct. No. A56970) |
APPEAL from an order of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed.
Jonathan L. appeals an order terminating his parental rights to his biological son, Isaac C., under Family Code section 7662.[1] He contends insufficient evidence was presented to show that he is not a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and there was insufficient evidence to support the conclusion that terminating his parental rights was in Isaac's best interests. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Jonathan began dating Isaac's birth mother, Lourdes R., in July 2009. In August Lourdes learned she was pregnant.
Lourdes filed a declaration in which she reported Jonathan did not provide any support to her during her pregnancy. She said Jonathan's response to the news of her pregnancy was silence. Lourdes reported she looked into having an abortion and informed Jonathan what an abortion would cost, but he did not give her any money. She said that in October 2009, Jonathan began seeing her sister, and in November she herself began seeing another man. Lourdes said this man encouraged her to obtain medical care and he supported her financially and emotionally until he was deported to Mexico. Lourdes said she did not live with Jonathan, he gave her no financial support and he telephoned her only three times during her pregnancy. She said he once gave her $25, but she repaid him. She reported that he drove her to two doctor's appointments, but merely dropped her off at the clinic, and when she was required to move, he refused to help her. Lourdes declared she contacted an adoption agency and chose Peter C. and Jennifer C. (the C.'s) as adoptive parents for Isaac. They began helping her with her expenses and were present when Isaac was born in June 2010.
Lourdes filed a governmental form declaring her intention to place Isaac for adoption. Jonathan petitioned to establish a parental relationship with him, requested paternity testing, filed declarations under the Uniform Child Custody Jurisdiction and Enforcement Act, and wrote a letter to the court stating he was trying to stop the adoption and wanted custody. He asked for appointment of counsel. The court appointed counsel for Jonathan and for Isaac. Genetic tests confirmed Jonathan is Isaac's biological father.
The C.'s petitioned to terminate Jonathan's parental rights. In response to a questionnaire sent to him by the San Diego County Health and Human Services Agency, Jonathan reported he is Isaac's father and wants custody. He said he gave Lourdes money for her pregnancy; purchased supplies for the baby; asked Lourdes about her pregnancy every day except when she was with her new boyfriend; and accompanied her to three prenatal appointments.
At a hearing on the matter, the court accepted Lourdes's declaration into evidence. In response to questioning from Jonathan's counsel, Lourdes said Jonathan did not support her or provide her with any money while she was pregnant. Lourdes's sister, Lourdes's mother, Jonathan and Jonathan's brother all testified to the contrary, saying Jonathan had supported Lourdes by giving her money and taking her to doctor's appointments. Jonathan testified he was prepared to marry Lourdes after her divorce from her first husband became final. He had purchased supplies for the baby, but Lourdes kept him from seeing Isaac at the hospital. Jonathan admitted he had been in the United States illegally since he was about one year old, and he had recently been deported. He said, however, that he had not done anything illegal and was attempting to return to the United States.
The court found Jonathan was not a presumed father under Kelsey S., and thus his consent was not required for the adoption to proceed. It noted that Lourdes had been in dire financial straits during her pregnancy, but Jonathan did not help her financially, emotionally or physically. The court found adoption would be in Isaac's best interests and terminated Jonathan's parental rights under section 7662.
DISCUSSION
I
Jonathan contends there was insufficient evidence to determine he is not a presumed father under Kelsey S. He argues he came forward and did all he could to assert his parental responsibilities under the circumstances that Lourdes created. He claims he gave her money, asked her to marry him after he learned she was pregnant, took her to doctor's appointments and bought items for the baby, but she gave Isaac to the C.'s immediately after his birth and refused to allow Jonathan to see him.
Under California's statutory scheme, classes of parents include mothers, presumed fathers and biological fathers. (Kelsey S., supra, 1 Cal.4th at p. 825.) Mothers and presumed fathers have a statutory right to withhold consent to an adoption absent a showing of unfitness. (Ibid.) By contrast, a biological father who does not qualify as a presumed father has no statutory right to block the adoption of his child unless he proves it is in the child's best interests that the adoption not proceed. (Ibid.; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051-1052 (Michael H.).)
A man is a presumed father if he meets the criteria of section 7611. Under section 7611, subdivision (d), a man who has neither legally married nor attempted to marry the child's mother may attain presumed father status if he "receives the child into his home and openly holds out the child as his natural child." If a biological father is not a presumed father under statutory presumptions, he may attain presumed father status when he fully commits to his parental responsibilities and he has made "a full commitment to his parental responsibilities -- emotional, financial, and otherwise," but a third party thwarts his attempts to achieve presumed father status under section 7611, subdivision (d). (Kelsey S., supra, 1 Cal.4th at p. 849.)
In Kelsey S., the California Supreme Court held the parental rights of a biological father who has made timely efforts to fulfill his parental responsibilities cannot be terminated unless there is a finding he is unfit. The court considers his conduct before and after the child's birth, including whether he publicly acknowledged paternity, paid pregnancy and birth expenses commensurate with his ability to do so, and promptly took legal action to obtain custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) He must demonstrate a full commitment to his parental responsibilities within a short time after he learned the biological mother was pregnant with his child. (Michael H., supra, 10 Cal.4th at p. 1060.) He must also demonstrate a willingness to assume full custody. (Kelsey S., supra, at p. 849.) A presumed father generally is afforded the right to veto an adoption of his child absent a showing of unfitness by withholding his consent, regardless of whether such action is deemed to be in the child's best interests. (Michael H., supra, at p. 1051.)
The biological father has the burden to establish the facts that show he is a presumed father under the Kelsey S. standard. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679-680.) In our review of whether Jonathan met this burden, we utilize the substantial evidence test. (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717.) In applying this test, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order, and affirm the order even if there is evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Substantial evidence supports the court's finding. The court did not err by concluding Jonathan had not sustained his burden to show he is a presumed father under the Kelsey S. standard. The court accepted Lourdes's declaration into evidence and considered her testimony at the hearing. Lourdes declared she and Jonathan were not together during her pregnancy, they never lived together and he did not support her financially, emotionally or physically. She said she told him when she learned she was pregnant, and his response was silence. She said they talked about abortion and adoption. She reported that after she became pregnant, Jonathan began seeing her sister and ignored her. She reasoned they could not keep the baby because they were not going to be together, he was in the United States illegally, he was not ready to be a father and his work was unreliable, and she wanted to finish school. She said he gave her no money, and he took her to two medical appointments, but only dropped her off, so she had to return home by bus. She said after she had to leave her mother's house, Jonathan's brother allowed her to live at his house, but she had very little money, had to sell her bed to pay bills and was forced to move back to her mother's home.
The court had the opportunity to observe Lourdes's demeanor when she was cross-examined by Jonathan's attorney. In response to his question regarding whether Jonathan had given her money during her pregnancy, Lourdes testified he had given her no money other than $25, which she repaid. When he asked why she was depriving Jonathan of his baby, Lourdes answered it was because he had not been supportive of her at all.
After listening to Lourdes's testimony and observing and listening to Lourdes's sister and mother, Jonathan and Jonathan's brother testify, the court accepted Lourdes's version of the facts and did not credit the testimony of Jonathan and his witnesses that he had given Lourdes money and assisted her during her pregnancy. The court found Lourdes was in great need of money and support during her pregnancy, but Jonathan had not helped her. Viewing the record in favor of the judge's order, we hold substantial evidence supports the court's ruling that Jonathan did not support Lourdes physically, financially or emotionally while she was pregnant with Isaac and thus he did not attain presumed father status under Kelsey S.
II
Jonathan asserts there is not sufficient evidence to support the conclusion that terminating his parental rights is in Isaac's best interests. It was Jonathan's burden to show Isaac's best interests would be served by retention of his parental rights. (Kelsey S., supra, 1 Cal.4th at p. 825; Michael H., supra, 10 Cal.4th at pp. 1051-1052.) Substantial evidence supports the court's finding that he did not make this showing.
Jonathan was not in a position to take care of Isaac at the time of the hearing. He had been deported to Mexico. Although he stated he would work to return to the United States, there was no evidence of when this might occur. As the court commented, if Isaac were not adopted, Jonathan would not be able to assume custody. Instead, Lourdes's or Jonathan's family members would care for him until such time as Jonathan was ready to assume his care. The very experienced juvenile court judge observed it would not be in Isaac's best interests to remain in an unstable situation without a permanent home while he waited until some unknown time when Jonathan could possibly become ready to care for him. The finding that it would be in Isaac's best interests to be adopted into a permanent, stable home, rather than remain in temporary situations with various family members is well supported.
DISPOSITION
The order is affirmed.
HALLER, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
