A.S. v. Vincenzo C.

• Decision Date: 27 February 2013
• Docket Number: A134219
• Citation: 212 Cal.App.4th 188,151 Cal.Rptr.3d 15
• Court: California Court of Appeals Court of Appeals
• Parties: ADOPTION OF A.S., a Minor. Kathryn S., Plaintiff and Respondent, v. Vincenzo C., Defendant and Appellant.

212 Cal.App.4th 188
151 Cal.Rptr.3d 15

ADOPTION OF A.S., a Minor.
Kathryn S., Plaintiff and Respondent,
v.
Vincenzo C., Defendant and Appellant.

A134219

Court of Appeal,
First District, Division 2, California.

Filed November 29, 2012
Review Denied February 27, 2013

Recognized as Unconstitutional

N.Y. Dom. Rel. Law § 111(1)

San Mateo County Superior Court, Honorable Elizabeth Lee. (San Mateo County Super. Ct. No. A15856)

Valerie N. Lankford, By Appointment of the Court of Appeal, Under the First District[151 Cal.Rptr.3d 18]Appellate Project, Independent Case Program, for Appellant.

Law Office of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman, Seth F. Gorman, for Respondent.

Kline, P.J.

[212 Cal.App.4th 192]

Vincenzo C. and Molly V. are the teenage biological parents of A.S. After the baby's birth in New York, Molly arranged for her adoption by Kathryn S., who resides in California. Vincenzo appeals from an order terminating his parental rights, contending he should have been recognized as a presumed father with the right to block the adoption. He claims the trial court erred in failing to give full faith and credit to a New York paternity judgment, in finding he did not achieve presumed father status on the basis of his conduct during Molly's pregnancy and after A.S.'s birth, and in finding adoption and termination of appellant's parental rights to be in A.S.'s best interests. We affirm.

STATEMENT OF THE CASE AND FACTS

Appellant and Molly met in 2010, in a high school class. On September 3, 2010, while Molly was staying at appellant's house for a few days due to problems she was having with her mother, Molly and appellant had sexual intercourse and Molly became pregnant. Molly testified that this was the only time she ever had sexual intercourse with anyone.

Around the middle of September, when a pregnancy test came back positive, Molly immediately told appellant via Facebook. After the pregnancy was confirmed, appellant and his mother, Crystal, came to Molly's home to discuss the situation with Molly and her mother, Jill. Jill testified that they

[212 Cal.App.4th 193]

discussed “all three options”—abortion, raising the child, and adoption—but mainly what Molly and appellant would have to do to keep the baby. According to Jill and Molly, Crystal said that “nobody was going to raise her grandbaby but her”; Crystal denied this. Crystal testified that she tried to offer things that would make it easier for Molly to afford keeping the baby, such as suggesting Medicaid and offering to pay for prenatal vitamins until Molly could get coverage and that appellant offered Molly help in the form of money or having Crystal watch the baby, “any way out so that she wouldn't get an abortion.” Appellant testified he voiced his opposition to abortion, that most of the discussion was about what would be necessary to keep the baby, and that he offered Molly vitamins and money, and to be someone she could talk to. He also testified that he and Crystal suggested him taking custody if Molly felt she could not take care of the baby and he did not remember whether there was any discussion of Molly having custody of the child. Appellant, Crystal and Molly all testified that adoption was not discussed at the meeting. Molly acknowledged having posted a Facebook comment on September 25, saying she did not appreciate Crystal “threatening to try and take [her] baby away” if she decided to put it up for adoption, but testified that there were no actual conversations about adoption at that time.

Molly testified that she initially thought appellant was going to help her raise the baby; she had very strong feelings for him and thought he felt the same way about her. At the beginning of October, however, he suddenly “turned” on her, saying “mean” things such as that she had gotten pregnant on purpose and had slept with all the boys in school so he could not be sure the baby was his. In a Facebook email, appellant told Molly he did not know if he loved her and he thought they should not be together any more. He also unfriended her on Facebook sometime before October [151 Cal.Rptr.3d 19]21. Molly testified that he broke her heart.

She continued to try to be friendly with appellant, for the sake of the baby. He became more and more hostile and continued to call her nasty names. He told her he never wanted to see her or the baby again and that he was going to take the baby away from her. On October 21, appellant told her “that he didn't care if he had to lie to a judge, but he was going to say that I was not in my right mind and he was going to take the baby away from me and I was never going to see it again.” Asked whether she responded to appellant by trying to hit him, Molly denied that she ever tried to hit appellant.

Molly was upset and posted some negative things about appellant on Facebook when she got home from school. These posts included, “Vinny [C.], you do not scare me. I do not have to put you on the birth certificate. So if you want to take my baby then you'll have to establish paternity first and that won't be cheap. Besides, the Court doesn't have to grant you the right to

[212 Cal.App.4th 194]

see your baby, so ha, ha, ha, you think you've got me beat, boy, you have another thing coming.” By October 21, appellant had already unfriended Molly, so she did not intend these posts to communicate anything to appellant, only to express herself. She did not think the friends who saw these posts would tell appellant about them.

Molly testified that she was under tremendous stress at this time and was having a difficult time in her relationship with her mother. People at school were telling her that appellant said the baby was not his and taunting her with things appellant had told them. Molly's grades began to decline and the situation became so painful that she went to a psychologist, who recommended “homebound schooling.” On October 31, she and Jill had an altercation that resulted in her biting Jill, Jill calling the police and Molly being arrested, charged with assault and spending a number of days in juvenile detention; the charge was eventually dismissed.¹ From the end of October through the end of the school year, Molly did her school work at home with a teacher coming after school a couple of times a week to bring her assignments, collect the completed ones and study with her. She returned to being an “A” student, but it was “incredibly” lonely.

Molly explained that while she no longer wanted a relationship with appellant, she did want him to participate in her pregnancy and never tried to avoid him or intentionally did anything to dissuade or prevent him from participating in the pregnancy or asserting his rights to the child. Appellant, however, never offered or gave her financial support, was not emotionally supportive after learning she was pregnant, and never discussed raising the baby jointly with her. Jill confirmed that, to her knowledge, Molly never received financial or emotional support from appellant or Crystal, and Molly never indicated to Jill that she had refused any offers of help from appellant or was trying to preclude him from participating in the child's life.

Appellant testified that he believed he was the father of Molly's baby from the time she told him she was pregnant, always acknowledged this, and never suggested to Molly or anyone else that he had any doubt about it; his father and a family friend also testified that appellant had always acknowledged that he was the father. [151 Cal.Rptr.3d 20]Appellant testified that he never considered himself and Molly boyfriend and girlfriend, and never told her he was in love with her or wanted them to have a life together, then later acknowledged a letter he had written to her saying all these things. He stated that upon learning Molly was pregnant, he immediately took “the necessary steps to ... assume responsibility as the father,” by himself and his mother offering “[p]renatal vitamins, money, going to doctor's appointments,” but that Molly “didn't want to hear

[212 Cal.App.4th 195]

any part of it.” Crystal, too, testified that she and appellant made it clear from the beginning that they were willing to help—they had offered to buy Molly prenatal vitamins, and offered physical, emotional and financial support—but Molly did not want anything from them and they soon started hearing that Molly was saying they were harassing her. Appellant did not get a job to help with the baby financially because he and his mother decided his education was more important at that time and his mother would help him financially.

According to appellant, initially after the meeting at her house he and Molly were getting along “okay,” but their relationship started to deteriorate after the fight she had with her mother that resulted in her being arrested, and she dropped him as a friend on Facebook early in the pregnancy. Before this, he went on her page once a day and read her posts, including the ones about him, but he but did not recall whether she said she was upset over him not wanting to continue a relationship with her. When he was blocked from Molly's page, he kept track of her posts through friends' accounts. At least once or twice a week friends would tell him about Molly saying negative things about him on Facebook. This made him want to stay away from Molly, but he “wasn't going to completely stay away from my child.” As a result of Molly's posts, people stopped talking to him and he was threatened by a friend of Molly's.² On one occasion, Molly mentioned going on the “Steve Wilco show for a DNA test,” appellant said he was not comfortable with this and she “stormed off.” As he started to go to class, she followed and tried to punch him. Another time he told Molly he was interested in taking the baby, she had an “outburst” and told him he “wasn't going to see the baby again” and had not done anything to help. Appellant denied ever telling Molly he was going to take the...