Adoption D.W. v. D.P., 2d Civil No. B283847

• Decision Date: 02 July 2018
• Docket Number: 2d Civil No. B283847
• Parties: ADOPTION OF D.W., a Minor. R.W. et al., Plaintiffs and Appellants, v. D.P., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

ADOPTION OF D.W., a Minor.R.W. et al., Plaintiffs and Appellants, v. D.P., Defendant and Respondent.

2d Civil No. B283847

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

July 2, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. A017614)

(Ventura County)

Appellants R.W. and S.W., child's prospective adoptive parents, appeal from a judgment decreeing that respondent qualifies as a presumed father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and that child therefore cannot be adopted without his consent. (Fam. Code,¹§ 7669.)² Based on the entire record, we conclude that the trial court's decision is supported by substantial evidence. We therefore affirm.

Kelsey S. Standard

Respondent D.P. is the unwed, biological father of D.W. (child). He does not qualify as a "presumed father" under statutory law. (§ 7611.) Where, as here, a biological father does not qualify as a presumed father under section 7611, he "generally does not have statutory standing to block the adoption of his child unless he proves that it is in the child's best interests that the adoption not proceed." (Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 442.) But "[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. Absent such a showing, the child's well-being is presumptively best served by continuation of the father's parental relationship." (Kelsey S., supra, 1 Cal.4th at p. 849.)

"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 ofthe 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." (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)

"The burden is on the biological parent to establish the factual predicate for Kelsey S. rights." (Adoption of H.R. (2012) 205 Cal.App.4th 455, 466.) An unwed father who carries his burden is referred to as a "Kelsey S. father." (See In re Hunter W. (2011) 200 Cal.App.4th 1454, 1462.)

Facts³

Child was born two days before his mother's 19th birthday. Mother immediately relinquished him for adoption to a licensed California adoption agency. Mother's signed relinquishment form named appellants as the prospective adoptive parents. Appellants "left the hospital with the baby."

Respondent met mother in April 2015 when he was 21 years old and she was a high school senior. In June 2015 mother informed him that she was pregnant. On "multiple occasions" respondent told her that she and child were his "responsibility." When respondent said "responsibility," he meant both "emotional" and "financial responsibility." Respondent also told mother that he "'would take care of her if she needed anything.'"

After learning that mother was pregnant, respondent initially spoke to her "[e]very day." He "constantly ask[ed her] how the pregnancy [was] going." But "one day [in the second week of July 2015] she just didn't want to talk to [respondent]. She said she wanted space." On July 14, 2015, respondent texted mother, "I do know that you asked me to give you some space, and honestly it will kill me but I will take it just for you babe."

The next day, mother texted respondent that she was considering adoption for child. He replied: "[P]lease don't give up on our child please, I'm already so happy with it. If you and your parents don't want it, I will take it. . . . I fell in love with it the minute we found out you were pregnant." "I can't give away my own child."

Mother "blocked" respondent on all of her social media sites. She did not block his phone number on her cell phone. She asked respondent not to "contact" or "bother" her.

Respondent did not go to mother's medical appointments "[b]ecause she didn't allow me to" go. He was not present at the hospital when child was born because "[n]o one told me about it. No one let me know." He wanted to be present for child's birth.

Two to three days after child was born, mother informed respondent of the birth and her relinquishment of child to the adoption agency. The next day, respondent filed a petition to establish a parental relationship. He did not file the petition before child's birth because the superior court's family law self-help center informed him that he "couldn't do anything until the baby was born."

Throughout the pregnancy, mother lived with her parents. Respondent knew that she was not working. Mothernever told respondent that she was in need of financial support and never asked him for money. Respondent believed that she did not need financial assistance.

Mother testified that she "need[ed] money." Until she was 38 weeks pregnant, she worked at Home Depot. Mother was covered under her parent's medical insurance, but she personally paid all of the required copayments. She also paid for "her own maternity clothes." Mother's parents paid "for the remainder of her living expenses."

During and after mother's pregnancy, respondent worked full-time as a service manager for a restaurant. His monthly take-home pay after payroll deductions was about $2,000. His monthly expenses were about $600. He lived at his parents' residence. Two days a week, he attended class at Ventura College.

When mother was pregnant, respondent met with her father and said "[t]hat I will take full responsibility . . . and that I will provide anything that [mother] would need, and the baby, of course." But respondent admitted that he had "never made an offer to either [mother] or the [adoption] agency to provide any financial support." Respondent explained: "I chose to give her space when she wanted it. And if I would get close to her, she [would] tell me not to do it. So I didn't know how [I was] supposed to actually give her stuff." "I always wanted to be there in person but I wasn't able to go near her." Respondent testified that, if mother had asked for money, he would "have been willing to provide for her financially."

Respondent was present at mother's deposition and heard her testify that her hospital bills remained unpaid. This did not concern respondent "[b]ecause I'm thinking first of gettingmy son back and then dealing with the other bills after." Respondent testified that, if child were "with" him, child's hospital bills would be his responsibility; but "if I'm not able to see him, no." At the time of trial, child's hospital bills were "still unpaid."

Shortly after child's birth in March of 2016, Anna Cowan, a pregnancy counselor employed by the adoption agency, offered to arrange a visit with child. Respondent testified: "I called her and told her no, I was filing the petition. She told me if I wanted to see my son, and I told her no at that time."

Respondent's initial visit with child occurred in June. At the first court hearing in May, Cowan offered to arrange the visit. Respondent did not request an earlier visit. Respondent acknowledged that, before and after child was born, he "had the ability to contact Ms. Cowan."

As of the trial date, respondent had five visitations with child. Each time he visited, he brought clothes and toys. His request for a visit was never denied. Respondent had "no doubt" that appellants "are doing a good job raising" child.

Procedural History

On March 4, 2016, respondent filed a "Petition to Establish Parental Relationship." He requested sole legal and physical custody of child.

On March 15, 2016, the adoption agency filed a "Petition to Determine Parental Rights of Alleged Natural Father and to Determine Necessity of Consent." The petition requested that the "Court find and declare that . . . [respondent] is the natural father of said child; and that the consent of said father is not necessary for the adoption of said child." Pursuant to section7664, subdivision (c), the granting of the adoption agency's petition would terminate respondent's parental rights.

Appellants joined in the adoption agency's petition. The petitions were consolidated. The court conducted a three-day trial on the consolidated petitions.

Trial Court's Statement of Decision

The trial court determined that respondent met his burden of establishing that he qualifies as a Kelsey S. father. The court found that respondent "steadfastly held himself out as the child's father and voiced his opposition to the adoption." "At [mother's] request, [he] stayed away" from her during the pregnancy. "When asked during the trial why he hadn't filed a lawsuit before the child's birth to prevent the adoption, [respondent] credibly testified that he sought advice from the Self-Help Center at the Ventura County Superior Court and was advised to wait until after the child was born before filing a lawsuit." "As soon as he learned of [child's] birth he went to the courthouse and filed his petition to establish his parentage."

The trial court continued: "[T]he Court finds that [respondent] never paid any money to [mother] or her parents during her pregnancy. It is also true that he did not pay any money to [appellants] after [child's] birth. However, it is also true that neither...