Opinion
D071583
09-12-2017
Adoption of N.Z., a Minor. L. Z. et al., Plaintiffs and Respondents, v. M. M., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Law Offices of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman and Seth F. Gorman for Plaintiffs and Respondents. Neil R. Trop, under appointment by the Court of Appeal, for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. AN15624) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Law Offices of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman and Seth F. Gorman for Plaintiffs and Respondents. Neil R. Trop, under appointment by the Court of Appeal, for the Minor.
Lisa L. (Mother) and M.M. (Father) are the unwed biological parents of N.Z. Not long after learning that Mother was pregnant with N.Z., Mother and Father's relationship deteriorated and Father became increasingly controlling and physically aggressive toward Mother. As a result, Mother moved to California and ceased all contact with Father before N.Z. was born. Shortly after giving birth, Mother agreed to release N.Z. from the hospital directly into the care of L. and R. Z. (the Z.'s), and consented to them adopting the child.
Upon learning of Mother's intentions to place N.Z. with the Z.'s, Father filed petitions to establish parentage; first in New York, where Mother had previously considered placing the child for adoption, and then in California. Shortly thereafter, the Z.'s filed a petition to terminate Father's parental rights so that the adoption could proceed. The trial court in San Diego consolidated the petitions and, after a seven-day evidentiary hearing, concluded that Father had not met his burden to establish himself as a quasi-presumed—or Kelsey S.—father pursuant to Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). The court subsequently determined that the adoption was in the best interests of the child and terminated Father's parental rights.
Father appeals and asserts that the trial court erred in determining that he does not qualify as a Kelsey S. father, that the trial court improperly relied on irrelevant and unduly prejudicial evidence in making its determination, and that his counsel provided ineffective assistance by failing to make a number of evidentiary objections. We conclude that Father's arguments are without merit and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the evidence in the light most favorable to the court's order. Father's testimony, summarized separately, post, disputes or contradicts much of the evidence; the trial court did not find Father's testimony credible.
Early Relationship and Pregnancy
Mother and Father met in Wisconsin, where they worked for the same company, and began dating in 2014. At the time, Mother was married to but separated from another man and had eight children, five of whom lived with her and three of whom were grown. Father told Mother that he had one son in Africa whose mother had passed away in a car accident, and two daughters in Wisconsin with whom he did not have contact due to a court order.
In January 2015, Mother had to quit working because she lost childcare for her children. Mother and Father continued their relationship and in June, Mother learned that she was pregnant. Mother had no doubt that it was Father's child and immediately informed him of the pregnancy. He asked whether she wanted to get an abortion and she told him that she did not.
That same month, Father resumed a romantic relationship with another woman, L.P. Although he continued his relationship with Mother, Father did not tell L.P. about Mother or the pregnancy, and also did not tell Mother about L.P. When L.P. saw a note on Father's calendar that said "prenatal vitamins," he lied and told her that they were for his sister. He did not tell her about Mother's pregnancy until January or February of 2016.
Father's Treatment of Mother During Pregnancy
According to Mother, Father was not supportive of her or the pregnancy and expressed increasing hostility toward her and her children. During the pregnancy, he told her that she looked like a "hillbilly" and needed to straighten her teeth and get a haircut. He also became aggressive with her other children, ordering them to sit on the ground while he walked in front of them with a belt, telling them that he would "break them" if they moved.
When Mother told Father that she needed prenatal care, he said that he did not want her to go to a doctor and told her that he would find a midwife to provide prenatal care. He bought her prenatal vitamins on one occasion, but never found a midwife as he had said he would. As a result, Mother received no medical care throughout most of the pregnancy.
Father was also aware that Mother was struggling financially, but did not offer to help pay her rent and did not offer to let her move into his apartment. The only financial support that Father provided was to buy a few grocery items and purchase a one-way airline ticket for one of her older children. By August 2015, Mother was no longer able to pay her rent. Father suggested that she move into a domestic violence shelter with her children. Father coached Mother to lie and tell the shelter workers that her estranged husband had abused her, in order to be admitted into the shelter. Mother did initially lie and claimed that her husband had recently abused her, but later recanted and told the shelter workers the truth.
Father provided a number of receipts for items that he claimed he purchased for Mother, but some of the receipts indicated that the items were purchased with Mother's debit card and others included items that Mother said she never received and/or had no use for.
During the first few weeks that Mother and the children were at the shelter, Mother's driver's license was suspended and Father assisted Mother by driving her children to school. In late September, a social worker informed Mother that Father had been representing himself at the school as the children's stepfather and that the teachers were afraid of him. Father also made comments to Mother that made her uncomfortable, so she stopped allowing Father to take the children to school and began taking them herself.
Around this same time, Father became increasingly controlling and Mother began to fear him. He insisted that she answer his text messages immediately and, on more than one occasion, took her to a cemetery near the shelter to lecture her for hours on end. He grabbed her arm on a few occasions, leaving at least one bruise, and once grabbed her neck as if to strangle her. He also told her that he could put acid in her bathtub and there would be nothing left of her.
Mother's Decision to Leave Wisconsin
In late October, Father went to the shelter with a friend and had the friend knock on the door and ask for Mother. Mother was frightened and said she did not want to see Father; she told a member of the shelter staff about the call with the social worker regarding Father's behavior at the children's school and said that Father had physically assaulted her. Father had been letting Mother use a car that belonged to him while she made payments toward buying it, but when Mother refused to see him, Father took the car from the shelter, as well as personal belongings of Mother's that were inside the car, without notice.
Based on Father's aggressive behaviors, workers at the shelter were concerned for Mother's safety and assisted her and her children in moving to another shelter in Illinois. Not long after moving to Illinois, Mother moved to California, where she had a supportive friend. Mother did not tell Father where she was because she was afraid of him. Father also moved sometime around November but refused to tell Mother his new address because they were not married and he therefore felt that he had no obligation to do so. Placement of N.Z. with an Adoptive Family
Fearing Father and feeling that she could not raise another child on her own, Mother decided to place her unborn baby for adoption. She initially chose an adoptive family who lived in New York. She spoke with the family's attorney, told the attorney that Father was the biological father, and gave the attorney the contact information that she had for him. When the attorney contacted Father, he refused to give her his address but expressed opposition to the adoption in an e-mail dated March 9, 2016. Mother understood that the attorney was planning to contact Father, but was not aware of Father's response to the planned adoption.
The e-mail stated, in relevant part, "If [Mother] wants to give up our child for adoption and [I] wasn't consulted - [I] intend to make my intentions clear to your firm to sell my child to foes -
[I] will challenge your didactic motive in reference to the law."
The prospective adoptive mother from New York traveled to California to spend time with Mother leading up to the birth of the child. During that time, Mother began to have doubts about her and ultimately decided, on the day the child was born, not to place him with her. Mother asked Karen Lane, an attorney in California who had been assisting the New York attorney with the California requirements for the adoption, whether she knew of any other prospective adoptive families and Attorney Lane put her in touch with the Z.'s. The Z.'s went to visit Mother and N.Z. in the hospital and Mother decided that she wanted to place N.Z. with them. Mother released N.Z. to the Z.'s from the hospital, and relinquished her parental rights to Nightlight Christian Adoptions, the agency that was handling the adoption.
Father's Opposition to the Adoption
A few days after N.Z.'s birth, the New York attorney notified Father that Mother had decided not to place the child with the prospective adoptive family in New York and that Mother had instead placed the child with a California family. Regardless, shortly thereafter, on March 31, Father filed an action in New York, seeking genetic testing and a declaration of paternity. He did not seek custody of the child or contest either adoption, and did not serve the pleading on the Z.'s or Attorney Lane, who was representing the Z.'s in the adoption.
Attorney Lane called Father on April 13, 2016, to discuss the adoption of N.Z. by the Z.'s in California. Father asked if the adoptive couple was homosexual, indicating that might be an issue for him, and Lane informed him that they were not. Father expressed no further concerns about the adoption and told Lane that he would cooperate. He followed up with at least two e-mails to Lane asking when he would be served with the paperwork concerning the adoption. Father did not indicate in either e-mail that he had any objection to the adoption. Attorney Lane arranged for a process server to serve the paperwork on Father, including a waiver and a notice of alleged paternity, on April 26, 2016. The notice indicated that Father had 30 days to contest the adoption.
Father did not sign the waiver and instead filed a petition to establish parentage in Los Angeles, where he believed Mother had been living prior to the birth, on May 23, 2016, near the end of the 30-day period. Father requested full legal and physical custody of N.Z. in the event that genetic testing confirmed his paternity, and also filed an ex parte request for a temporary emergency order denying Mother custody and requiring that the Z.'s relinquish custody of N.Z. directly to Father. In a declaration submitted in support of his ex parte request, Father declared that he had three other children, two boys and one girl, ages 18, 13, and 8, and that he was fully involved in the lives of each in that he provided them emotional and financial support and spent time with them on a frequent and consistent basis.
On June 1, 2016, the Z.'s filed a petition to terminate Father's rights, and to allow the adoption to proceed, in accordance with Family Code section 7662.
All further statutory references are to the Family Code unless otherwise noted.
The following day, the New York court dismissed Father's New York parentage action for lack of jurisdiction.
Genetic Testing and Visitation
The parties agreed to conduct genetic testing to confirm that Father is the biological father of N.Z. Father wanted to be present when N.Z. was tested and also asked to visit with the infant after the testing. The Z.'s agreed to both of Father's requests. The Z.'s suggested that the visitation take place at the adoption agency but Father refused and insisted that it take place at a police station.
The Z.'s met Father for the first time as they entered the genetic testing center with N.Z. L.Z. attempted to introduce himself, but Father immediately stood up and tried to take a photograph of N.Z., who was sitting on R.Z.'s lap. Because there was a sign in the waiting room that stated that no photographs were permitted in the laboratory building, L.Z. asked Father not to take any additional photographs inside, and took N.Z. outside where Father could take photographs. L.Z. then took N.Z. back inside for testing.
The testing ultimately confirmed Father's biological paternity, and the parties stipulated to the same at trial.
After the testing, the Z.'s took N.Z. to the police station for the visitation. Before handing the infant to Father, the Z.'s asked that Father not take the child out of the supervised area. Father became belligerent and said that the Z.'s did not have a right to restrict his visitation. The visitation proceeded but tensions continued to rise and a police officer had to intervene and speak with Father and the Z.'s. During the discussion, Father continued to insist on unsupervised visitation and accused the police officer of being biased against him. The visitation continued and, at another point during the visit, Father began to undress N.Z. L.Z. asked Father not to do so, Father became belligerent, and the police officer had to intervene once again.
Throughout the visit, Father refused to take the child directly from the Z.'s and instead requested that they hand N.Z. to L.P., who was also in attendance, so that L.P. could then hand N.Z. to him. Father left the police station a number of times to take phone calls, leaving L.P. to hold and care for the baby. He stated that she should be comfortable with N.Z. because she would be raising the child. On one occasion when Father left to make a phone call, N.Z. became upset and L.P. handed the child back to R.Z. When Father returned and realized that L.P. no longer had N.Z., he became very upset and demanded that the Z.'s immediately hand N.Z. over despite the fact that N.Z. was sleeping at the time. The Z.'s told Father that they would give N.Z. back after his nap, and promptly did so when N.Z. woke up. Father ended the visit shortly thereafter.
Following the visit, Father made no further attempts to communicate with the Z.'s or their counsel about N.Z. Father also made no further attempts to see or visit with N.Z.
Pretrial Court Proceedings
On July 15, the parties filed a stipulation asking the superior court in San Diego to transfer the parentage action from Los Angeles to San Diego and to consolidate it with the Z.'s petition to terminate Father's parental rights. The court accepted the stipulation.
On August 1, 2016, Father filed another ex-parte request for an emergency order giving him legal and physical custody of N.Z., this time in the superior court in San Diego. Father included a sworn declaration in which he stated, in part, "I am a father of four children, an eighteen year old boy and a thirteen year old girl who live in Africa; a six and four year old girl who live in Wisconsin. I am fully involved in all of my children's lives by providing them with emotional and financial support and spending quality time with them on a frequent and consistent basis."
On August 19, the court ordered the matters consolidated and set an evidentiary hearing to determine parentage in accordance with section 7664. The court acknowledged Father's ex parte request for custody and found that it was precluded from making any orders regarding custody or visitation pending a decision on parentage, but stated that the parties could agree to visitation if they so desired. There is no indication that Father made any requests or attempts to arrange any further visitation with N.Z.
Requests for Judicial Notice
Prior to the evidentiary hearing, the Z.'s filed a request that the trial court take judicial notice of 20 certified court records from Wisconsin (hereinafter the Wisconsin divorce proceeding documents). The documents related to divorce and child custody proceedings between Father and his former wife, D.K., with whom he has two daughters. Separately, Father brought a motion to recuse minor's counsel. In a declaration in support of their opposition to that motion, the Z.'s provided certified copies of other lawsuits and complaints that Father had previously brought, primarily in relation to the divorce proceeding in Wisconsin, and asked the court to take judicial notice of those documents and, specifically, the nature of the actions that Father had previously filed in other courts. Finally, the Z.'s filed a lodgment of the transcripts from the Wisconsin divorce proceedings and stated that they intended to use the transcripts for possible impeachment at the evidentiary hearing.
At the outset of the evidentiary hearing, Father agreed to withdraw his motion regarding minor's counsel, thereby rendering the opposition and the associated court records moot. The court then addressed the motion for judicial notice of the documents from the Wisconsin divorce proceeding, and stated that it had not yet reviewed all of the associated exhibits and would not make a blanket ruling. Instead, the court indicated that it would rule as each exhibit was brought up during trial, and that it would deal with any remaining exhibits on an ad hoc basis. The Z.'s counsel stated that the parties had conferred regarding the exhibits and had agreed on all of them, except that the Z.'s would not offer exhibits 11, 12, or 15. The court stated that it would not look at exhibits 11, 12, or 15 and reiterated that it would deal with each individual exhibit as it came up.
The trial court did ultimately take judicial notice of the remaining exhibits, but also stated that any rulings of law or statements of fact in the exhibits were not binding on the court, that someone else stating a fact in another case did not necessarily mean that the fact was true, and that, to the contrary, the court would make its own credibility determinations as to the witnesses in the present case.
Father's Testimony
At the evidentiary hearing, Father testified that he met Mother in June 2014 and began a romantic relationship with her in October 2014. He stated that he found out that Mother was pregnant in June 2015 and that he took her to medical appointments every month thereafter but paid out of pocket because she did not want to use her insurance.
Father asserts in his opening brief that he testified that he told numerous individuals about the pregnancy, including L.P., but the citation that he provides does not support this assertion and we have found no such testimony in the record. Further, L.P. testified that he lied to her about the pregnancy and did not tell her the truth until early 2016.
Father stated many times that he was a "man of means" and asserted that he had established a "trust" fund containing $50,000 for N.Z. However, he refused to answer when asked why he had asked for a fee waiver from the court, told the court that he could not afford to come back to California for a subsequent day of testimony because he was "not a man of means," and also testified that he had lived in a shelter after his divorce from D.K.
When asked about his job at the company where he met Mother, Father stated that he was a caseworker and that he supervised three community-based residential and adult family home facilities. He later acknowledged that a representative of the company testified that he worked only as a direct care staff person and that he had never been a supervisor.
Father testified that he had supported Mother financially during her pregnancy by providing her with money, transportation, food, clothing, maternity care, and "whatever she needed." When asked why he had not assisted Mother when she lost her housing, he stated that he did not offer to allow her to move into his apartment because her other children were not well behaved and he was afraid that he would be evicted if they all moved in with him. Later, however, he testified that he did offer to have Mother move in with him and that he would have gotten a bigger apartment, but Mother refused his offer.
Father denied that he had been aggressive or abusive toward Mother, either physically or emotionally. He said that he broke off their relationship because he felt that she had betrayed him by talking to the shelter staff about him, and that Mother left the shelter and moved out of state shortly thereafter. He asserted that before Mother left, his intention was to take care of her and N.K.
Regarding his children in Africa, Father testified that he married his high school sweetheart in Africa in 1996, that they had two children together—a boy born in 1998 and a girl born in 2003—and that his wife had passed away in a car accident in 2005. A woman named T.M. testified that she had been married to Father in Africa, that she and Father had one child together by the name of Derrick, and that Father had not visited or provided financial support to Derrick since 2011. Father denied that Derrick was his son and asserted that he did not know T.M. Later, however, he testified that he had a boy who was younger than the girl child in Africa and that D.K. had met "the last kid, the last boy" when she was in Africa. Father testified that he had left his brother in charge of his children when he left Africa but that he sent money and other items to them on a regular basis.
T.M. claimed that Father had a second identity and produced a marriage certificate between herself and a man by another name, who she claimed was Father, which Father denied. Mother also testified that she believed that Father had a second identity based on his having two passports, and his telling her that his driver's license was not accurate and that she would not find him in the court system because the name he used was not his real name. --------
With respect to his Wisconsin marriage, Father denied that he had abused D.K. but acknowledged that he had been placed on probation as a result of aggressive behavior toward her, and that he had been prohibited from having any contact with his children for a period of seven months as a result. Father also acknowledged that the court in his divorce proceeding concluded that he was not a credible witness and that he had "perjured himself during testimony and [had] attempted to control and manipulate the Court and to harass and intimidate the petitioner," but denied the accuracy of the court's statements. Father said that he saw his daughters approximately twice a month and had last seen them approximately three months prior to his testimony. However, L.P. testified that she was not aware of Father having visited his daughters in Wisconsin at any time since she and Father resumed their relationship in June 2015.
Court's Decision Regarding Parentage
At the conclusion of the seven-day hearing, the court issued a written decision on parentage and the petition to terminate Father's parental rights. The court stated that it was mindful of the animosity that some of the witnesses, such as D.K., had expressed toward the parties and that it was "very aware of both the external inconsistencies displayed by Father, as well as the numerous internal inconsistencies during his testimony."
With respect to whether Father qualified as a Kelsey S. father, the court noted that previous courts have set forth a number of factors that a court should consider in making that determination, and addressed each factor individually, making factual findings with respect to each. The court ultimately found that Father's behavior toward Mother during the pregnancy had been abusive, demeaning and emotionally harmful; that Father had not participated in Mother's medical care nor provided financial support; and that Father had not told L.P. about the pregnancy until just before the child's birth. The court concluded that Father had not met his burden to establish himself as a presumed father within the meaning of Kelsey S.
The court went on to discuss whether termination of Father's parental rights to allow for adoption of N.Z. by the Z.'s was in N.Z.'s best interests and concluded that "it would not be in the Minor's best interest[s] for the Father to retain his parental rights and have the adoption not proceed." The court terminated Father's parental rights and stated that the adoption could proceed without Father's consent.
DISCUSSION
I. Substantial Evidence Supports the Trial Court's Determination That Father Is Not a
Kelsey S. Father
Father's primary contention on appeal is that there is not substantial evidence to support the trial court's findings or its conclusion that he does not qualify as a Kelsey S. father. A. The Rights of Biological Fathers to Contest Adoption
The child of a father who is recognized as a "presumed father" in accordance with section 7611 cannot be adopted without the father's consent unless the court finds—on specific grounds set forth in the statute—that the father is unfit. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.); Adoption of H.R (2012) 205 Cal.App.4th 455, 465.) However, a biological father who does not meet one of the statutory definitions of a "presumed father" typically has a limited ability to contest the adoption of his child. (Kelsey S., supra, 1 Cal 4th at p. 823.) Specifically, the biological child of a father who is not a statutorily presumed father can be adopted without the father's consent unless the court finds that the adoption would not be in the best interests of the child. (Michael H., supra, at p. 1051; Adoption of H.R., supra, at p. 465.)
Where, as here, the biological father concedes that he is not a presumed father under the statute, he may nevertheless have a constitutional right to contest the adoption and assert his parental rights in a manner similar to a statutorily presumed father. (Kelsey S., supra, 1 Cal.4th at p. 849.) This is because, in Kelsey S., the California Supreme Court held that when a biological father "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise—his federal constitutional right to due process [and equal protection] prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Id. at p. 849; see also Michael H., supra, 10 Cal.4th at pp. 1053-1054, 1059 [confirming and further describing the test set forth in Kelsey S.].) Courts frequently refer to biological fathers who are not statutorily presumed fathers, but who nevertheless meet the criteria set forth in Kelsey S., and thus have rights similar to statutorily presumed fathers, as quasi-presumed or Kelsey S. fathers. (See, e.g., Adoption of H.R., supra, 205 Cal.App.4th at pp. 465-466; Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 453.)
Whether a father qualifies as a Kelsey S. father is a fact-intensive question, and the trial court considers a number of factors in making such a determination. The court must consider the father's conduct both before and after the child's birth, and must determine whether the father "promptly attempt[ed] to assume his parental responsibilities as fully as the mother [would] allow and his circumstances [would] permit" and whether he has demonstrated " 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' " (Kelsey S., supra, 1 Cal.4th at p. 849.) In addition, the court should also consider any delay by the father in communicating to the mother that he did not agree with the proposed adoption, the father's public acknowledgement of paternity, his payment of pregnancy and birth expenses commensurate with his ability to do so, and whether he took prompt legal action to seek custody of the child. (Ibid.; Michael H., supra, 10 Cal.4th at p. 1060; see also Adoption of Baby Boy W., supra, 232 Cal.App.4th at pp. 453-454 [concluding the trial court properly applied Kelsey S. when it analyzed seven factors consistent with Kelsey S. and its progeny].) B. Standard of Review
When a biological father asserts that he demonstrated a full commitment to his parental responsibilities in a manner sufficient to assert his parental rights pursuant to Kelsey S., he has the burden to establish the facts supporting this assertion. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679-680.) We review the trial court's decision as to whether the father has met this burden for substantial evidence, viewing "all factual matters most favorably to the prevailing party and in support of the judgment, indulging all reasonable inferences and resolving all conflicts accordingly." (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717.) In doing so, we do not attempt to reweigh the evidence or determine whether a given witness is credible but, instead, remain mindful of the trial court's credibility determinations. (In re R.V. (2012) 208 Cal.App.4th 837, 843.) C. Analysis
The trial court set forth its findings of fact in detail in a written decision. At the outset of the decision, the trial court noted that it was "very aware of both the external inconsistencies displayed by Father, as well as the numerous internal inconsistencies during his testimony," and stated that the court would note such inconsistencies in the substance of its written opinion. As discussed, we defer to the trial court's credibility determinations on appeal. (In re R.V., supra, 208 Cal.App.4th at p. 843.) Moreover, the record is replete with contradictory statements from Father regarding his employment and career, the extent of his financial resources, the number of other children he has and the ages and genders of those children, and, most significant to the matter at hand, whether he offered to provide or in fact did provide support, housing or medical care for Mother during her pregnancy. Thus, to the extent that the court's statement regarding the inconsistencies in Father's testimony can be characterized as a factual finding, it is supported by substantial evidence.
After making this initial observation, the trial court went on to discuss the specific factors that it had considered. The court found that Father did not promptly assume parental responsibility as fully as the circumstances would allow because, although he did provide some prenatal vitamins, food, and assistance to mother with things like laundry and helping to drive her other children to school, he did not assist Mother with housing and actually prevented her from obtaining appropriate prenatal care. The court also concluded that Father had failed to provide adequate financial assistance to Mother for items associated with the pregnancy or birth, despite claiming that he had funds set aside for the child.
Next, the court found that Father did provide some evidence of a willingness to take custody of N.Z. in that he filed actions to contest the adoption and prepared a room for the child in his home, albeit only after the litigation had commenced. However, the court further found that this evidence was contradicted by Father's adversarial conduct during his initial visit with N.Z and his failure to seek additional visits. Regarding his public acknowledgement of paternity, the court did not credit Father's own self-serving testimony that he had told people about the child, and instead found that he had lied to L.P. about his paternity for months. The court also found that while Father did file two legal actions contesting the adoption, he did not object to the adoption when first contacted by Attorney Lane and he waited almost a full month, until the deadline, to file his objection in California. The court found not credible Father's assertion that he had not objected to the adoption when talking to Attorney Lane because he was worried that Mother would abscond with the baby.
Finally, the court found that although Father had initially made some attempts to provide Mother with support, he became increasingly controlling as well as physically and emotionally abusive during her pregnancy, all while reigniting a romantic relationship with another woman. The court noted that Father denied such behavior, but stated that Mother's assertions regarding Father's conduct were corroborated by the testimony of D.K. and the findings of the court in the Wisconsin divorce proceedings.
Based on these factors, the court concluded that Father had not demonstrated a commitment to his parental responsibilities or a willingness to assume full custody, as required by Kelsey S. As set forth in detail in the factual and procedural background, ante, substantial evidence supports each of the court's factual findings.
For the most part, Father does not dispute that there was at least some credible evidence supporting the trial court's findings. Indeed, in many instances, Father concedes that there was evidence supporting the court's findings, but complains that the court relied too heavily on testimony from Mother. Rather than claiming that there is not substantial evidence to support the court's findings, Father spends a great deal of his briefing re-hashing the evidence, and arguing that the trial court erroneously failed to consider his own self-serving testimony. However, the court was entitled to make credibility determinations and to weigh the evidence, and to credit the testimony of Mother and other witnesses over Father's testimony. (In re R.V., supra, 208 Cal.App.4th at p. 843.) We do not reweigh the evidence or reconsider the trial court's credibility determinations on appeal. (Ibid.) Moreover, the substantial evidence standard does not require that there be no contrary evidence but, instead, requires only that there be sufficient credible evidence to support the trial court's findings. (Ibid.)
Father argues that the trial court did not consider the fact that Mother left the state and failed to tell him where she was, such that her actions made it impossible for him to provide further support or assistance. To the contrary, the court's written decision indicates that the court did take that fact into consideration, but concluded that Father's demeanor and his actions toward Mother after he found out that she was pregnant and before she left Wisconsin were demeaning and emotionally harmful rather than supportive, and that Mother fled because of Father's conduct. The court also found that even before Mother left Wisconsin, Father effectively precluded her from obtaining necessary prenatal care by telling her that he wanted her to see a midwife instead of a doctor but then failing to follow through on his promise to find a midwife to treat her. Again, substantial evidence supports those findings.
Father also asserts that the trial court improperly relied on the fact that he lied to L.P. about Mother's pregnancy and argues that there is no authority indicating that withholding information about the pregnancy of another woman from one's spouse or significant other is akin to failing to hold the child out as one's own. However, Father provides no authority establishing that such a fact is not relevant to the court's Kelsey S. analysis. Further, the court did not rely solely on the fact that Father failed to tell L.P. about the pregnancy, but also found that there was no evidence, other than Father's own testimony, that he had told anyone about the pregnancy, and that the only credible evidence related to Father's acknowledgement of paternity indicated that he affirmatively lied to L.P. about his paternity. The father's public acknowledgement of paternity is relevant to the determination of whether a father is a Kelsey S. father, and substantial evidences supports the court's finding that Father failed to publicly acknowledge his paternity. (See Adoption of Baby Boy W., supra, 232 Cal.App.4th at pp. 453-454, 456.)
Finally, Father asserts that, pursuant to Adoption of Michael H., supra, 10 Cal.4th at page 1054, the trial court was obligated to weigh all of the relevant factors and that no one factor was determinative of whether he qualifies as a Kelsey S. father. Father's assertion misconstrues both the holding in Michael H. and its application to the present case.
In Michael H, the biological father directed violent outbursts toward the mother during her pregnancy and attempted to commit suicide on the mother's birthday, causing the mother to cease contact with him. (Adoption of Michael H., supra, 10 Cal.4th at p. 1048.) However, the Father's demeanor changed before the child was born and his efforts to demonstrate his willingness to accept his parental responsibilities after the child was born were "nothing short of impressive." (Id. at p. 1053.) The trial court held that the father qualified as a Kelsey S. father based on his conduct after the birth, and the appellate court affirmed. The California Supreme Court reversed and, in doing so, acknowledged that the trial court and appellate court had concluded that no one factor is determinative, but went on to agree with the appellants that those courts had misinterpreted and misapplied the court's decision in Kelsey S., supra, 1 Cal.4th 816. (Michael H., supra, at p. 1054; accord Baby Boy W., supra, 232 Cal.App.4th at pp. 453-454 [noting the trial court found the father met all of the Kelsey S. conditions, although he met some "imperfectly and grudgingly" and concluding that the trial court correctly applied Kelsey S.].) The court explained that a biological father who did not promptly demonstrate a full commitment to his parental responsibilities after learning that the mother was pregnant with his child could not gain Kelsey S. status by contesting the adoption and demonstrating a full commitment to the child only after the child was born. (Michael H., at p. 1060.)
Father appears to have been more committed at the outset of Mother's pregnancy than the father in Michael H., but the cases are similar insofar as both fathers failed to maintain a full commitment to their parental responsibilities over the course of the mother's pregnancy. As in Michael H., the limited instances in which Father attempted to demonstrate such a commitment are not sufficient to establish that he is a Kelsey S. father. (See Michael H., supra, 10 Cal.4th at p. 1060.)
In any event, the trial court did not rely on a single factor but, rather, discussed the facts related to seven factors relevant to the analysis, including Father's conduct both before and after N.Z. was born, before ultimately concluding that Father had not met his burden to establish himself as a Kelsey S. father. As discussed, substantial evidence supports the court's findings.
II. The Trial Court Did Not Rely on Irrelevant or Unduly Prejudicial Evidence
Father asserts that the trial court erred in admitting and relying on irrelevant and unduly prejudicial character evidence related to his previous marriages and other children and, in particular, in relying on the documents from the Wisconsin divorce proceeding and the testimony of his ex-wife, D.K.
Relevant evidence is "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Pursuant to Evidence Code section 1100, evidence of reputation and specific instances of prior conduct are relevant and admissible when the parent's character is at issue, as it is in legal proceedings concerning child custody. (See In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1158-1159 [applying § 1100 in dependency proceedings where custody was at issue].) Further, pursuant to Evidence Code section 1101, although evidence of an individual's character or specific instances of his or her past conduct typically is not admissible to prove consistent conduct on a specified occasion, such evidence may be admissible to prove a person's character and to attack a person's credibility.
Father put both his credibility and his parental conduct at issue by claiming that he was a good father to his other children, maintaining that he had supported Mother both emotionally and financially during her pregnancy, denying Mother's claims that he had been emotionally and physical abusive toward her, and presenting testimony himself to demonstrate his own good character. As a result, opposing counsel was entitled to present evidence, including evidence related to Father's previous marriages and his relationships (or lack thereof) with his other children, proving that Father was not a good father to his other children and that Father's assertions that he had not been abusive toward Mother were not credible. (See Evid. Code, § 1100, In re Dorothy I., supra, 162 Cal.App.3d at pp. 1158-1159.)
In addition, at the outset of the trial, the court explained its view that there were two issues that it had to consider; first, it had to determine whether Father qualified as a Kelsey S. father. Then, depending on that determination, it would have to determine either whether Father was an unfit parent, or whether the termination of Father's parental rights to allow the adoption to proceed would be in the best interests of N.Z. At the court's request, and to eliminate the need to call the same witnesses more than once, the parties agreed to elicit evidence related to both issues from the witnesses. As a result, the trial court permitted the parties to present evidence that was relevant to the determination of whether the adoption was in the best interests of N.Z. or whether Father was an unfit parent, before the court had made its Kelsey S. determination. Because Father agreed at the outset of the trial to proceed in this manner and offered his own evidence regarding his fitness as a parent, he cannot now complain that the court also accepted opposing evidence indicating that he was not a fit parent and that the adoption was in N.Z.'s best interests.
In the context of its Kelsey S. analysis, the record indicates that the trial court relied on D.K.'s testimony and the documents from the Wisconsin divorce proceeding only as corroboration for other evidence presented—specifically, Mother's testimony. Even then, the court cited the disputed evidence in only one instance and with respect to only a single factor, stating that the evidence corroborated Mother's version of the events. In addition, the court explicitly stated that it found Mother to be more credible than Father and that Father was not credible due to his own conflicting statements. It is thus clear that the court would have credited Mother's testimony regarding Father's abusive conduct over Father's denials even absent the evidence related to Father's previous divorce.
Finally, Father asserts that this evidence was irrelevant insofar as it related to the determination of whether adoption was in N.Z.'s best interests, because the court should have found that Father was a Kelsey S. father, and thus never should have applied the best interests standard. Father's argument is circular and is not persuasive. As discussed, the court acknowledged that the standard it would apply in deciding whether or not to terminate Father's parental rights depended on whether Father was a Kelsey S. father and the parties agreed to submit evidence related to the best interests of N.Z. and Father's fitness along with evidence related to the Kelsey S. inquiry. Since the trial court concluded that Father did not qualify as a Kelsey S. father, it applied the correct standard when it determined that the adoption was in N.Z.'s best interests and terminated Father's parental rights. (Kelsey S., supra, 1 Cal.4th at p. 849; see also Michael H., supra, 10 Cal.4th at pp. 1053-1054, 1059.)
III. Father Was Not Prejudiced By His Trial Counsel's Performance
Father asserts that his trial counsel provided ineffective assistance by failing to object to: (1) the introduction of the documents from the Wisconsin divorce proceeding; (2) counsel's reading of a portion of the testimony of Marilyn S. from the Wisconsin divorce proceeding; (3) testimony from D.K. regarding Father's prior acts; and (4) alleged hearsay testimony regarding statements Mother made to an expert witness who testified on the subject of bonding.
To prevail on his claim of ineffective assistance of counsel, Father must show that counsel's performance was well below the standard of reasonableness under prevailing professional norms and that the deficiency undermined the fairness of his trial or, put another way, that the result would have been more favorable but for counsel's unreasonably substandard performance. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; In re Wilson (1992) 3 Cal.4th 945, 950; see also Adoption of Michael D. (1989) 209 Cal.App.3d 122 [holding the constitutional right to effective counsel applies to proceedings regarding the termination of parental rights], superseded by statute on another ground as set forth in In re Mario C. (1990) 226 Cal.App.3d 599, 606.)
On review, we presume that trial counsel's decisions were proper and give deference to trial counsel's tactical choices. (Strickland v. Washington, 466 U.S. at pp. 691-694; People v. Hinton (2006) 37 Cal.4th 839, 876.) We assess the reasonableness of counsel's tactical decisions under the circumstances in which counsel made the decisions and do not second-guess them in hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) Where there is no indication in the record as to why counsel did not make a particular objection, we reject a claim of ineffective assistance on appeal unless there was no rational explanation for the omission. (See People v. Lucas (1995) 12 Cal.4th 415, 442; People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice . . . . [Citation.] Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel's failings, the result would have been more favorable to the [party]." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) A. The Wisconsin Divorce Proceeding Documents
Father asserts that trial counsel should have objected to the Z.'s request that the court take judicial notice of the documents from the Wisconsin divorce proceeding. Father relies on Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1566 (Sosinsky). In Sosinsky, the court concluded that it was not appropriate for the trial court to have taken judicial notice of the facts contained in certain court documents submitted with a summary judgment motion, particularly where those facts were in dispute. (Ibid.) However, the California Supreme Court has since acknowledged that courts may, and often do, take judicial notice "that certain findings have been made, even when notice of the findings' truth would not be proper." (Haworth v. Superior Court (2010) 50 Cal.4th 372, 397, fn. 2 (dis. opn. of Werdegar, J.).)
Father's counsel did begin to make an objection to one of the orders from the Wisconsin divorce proceedings, stating, "Objection, your Honor. It's a court order. Whether it [sic] true—." The court sustained the objection and went on to explain, more generally, that even if it did decide to take judicial notice of certain documents, it would not be taking notice of the facts contained therein as true, but would instead be making its own credibility determinations. The court later stated that it would take judicial notice of the documents from the Wisconsin divorce proceeding. In its written decision, the only reference that the trial court makes to the documents is the single statement that the findings of the court in the Wisconsin divorce proceeding corroborated Mother's version of the events. It was reasonable for Father's counsel not to have objected further, since the trial court properly took judicial notice of the existence of the documents and the court's findings, but did not take judicial notice of the truth of those findings or of any assertions of fact contained in the documents. (See Sosinsky, supra, 6 Cal.App.4th at pp. 1564-1566; Haworth, supra, 50 Cal.4th at p. 392, fn. 2 (dis. opn. of Werdegar, J.).)
Regardless, there is not a reasonable likelihood that Father was prejudiced as a result of his counsel's failure to object. Father asserts that the records of the Wisconsin divorce proceeding were prejudicial because the court stated in its written decision that the findings of the Wisconsin divorce court corroborated Mother's versions of the events. However, as Father acknowledges, this single statement relates to only one of seven factors that the court considered. The court also made a number of other factual findings—supporting its conclusion that Father was not supportive of Mother or the pregnancy—that were not related to, nor corroborated by, the documents from the Wisconsin divorce proceeding, such as the court's findings that Father failed to assist Mother with medical care, housing, or other financial support. Further, the court's statement in its written decision regarding the inconsistencies in Father's testimony indicate that the court relied much more heavily on its own observations of Father's testimony than it did on the findings of the court in the Wisconsin divorce proceedings in determining that Father was not credible. There is thus not a reasonable probability that the court would have credited Father's versions of the events over Mother's even absent the documents from the Wisconsin divorce proceeding, or that the outcome would have been more favorable to Father if the documents had been excluded. B. Reading of Portions of Marilyn S.'s Testimony
During her cross-examination of Father, the Z.'s counsel read Father portions of the testimony of Marilyn S., whom he had called as a witness in the Wisconsin divorce proceedings, and then asked Father questions about that testimony. Father argues that counsel's reading of the testimony allowed the introduction in evidence of improper hearsay. Father notes that Evidence Code sections 1235 and 1237 provide an exception to the hearsay rule for the use of a witness's own prior testimony only to impeach the witness or to refresh his or her recollection, and contends that his counsel provided ineffective assistance by failing to object. (See Evid. Code, §§ 1235, 1237.)
We need not decide whether Father's counsel's failure to object fell below the standard of reasonableness, because we conclude that there was no prejudice to Father as a result of counsel's conduct. In addition to the documents from the Wisconsin divorce proceeding, the trial court also took judicial notice of "the binder containing the transcripts of the respective witnesses whose testimony is indirectly referred to in the individual exhibits and the minute orders that correspond[] to their actual testimony." As with the documents themselves, the court was entitled to take judicial notice of the existence of the testimony and to consider whether it supported the ultimate findings of the Wisconsin court, without taking judicial notice of the truth of that testimony. (See Sosinsky, supra, 6 Cal.App.4th at pp. 1564-1566 & Haworth, supra, 50 Cal.4th at p. 392, fn. 2 (dis. opn. of Werdegar, J.).) Thus, the court may have been aware of the testimony even if it had not allowed counsel to read the testimony to Father on the stand.
In any event, it is not reasonably likely that the testimony had any significant impact on the trial court's decision. The testimony that the Z.'s counsel read aloud related to the underlying issue of whether Father had used more than one identity, and whether he had faced criminal charges under a different name in Africa. The issue of Father's alleged second identity was not a primary issue at trial and the court made no reference to it in its written decision. In fact, the only reference that the court made to Father's prior life in Africa in the entire decision was that "[t]he evidence as to the Father's children in Africa shows that he has only sporadically provided for their financial support and is not frequently in contact with them." Further, the court explicitly found that Father's own testimony was internally inconsistent and relied on that finding in determining that he was not credible. Thus, it is not reasonably probable that the court accorded any significant weight to the testimony of Marilyn S. in making its determination as to Father's credibility, or that the outcome would have been more favorable to Father if the testimony had been excluded. C. D.K.'s Testimony
Father asserts that his counsel provided ineffective assistance by failing to object to the testimony of D.K. as improper character evidence. Father's counsel did object to some characterizations of Father that D.K. offered, but did not object more generally to D.K. offering improper character evidence. However, we need not decide whether Father's counsel should have made further objections in this regard because there was no prejudice to Father as a result.
Father latches on to a single statement by the court, taken out of context, to assert that D.K.'s testimony was integral to the court's determination of whether Father qualified as a Kelsey S. father, and that his counsel's failure to object was therefore prejudicial. Specifically, near the conclusion of the evidentiary hearing, Father's counsel asked whether the court would provide a tentative ruling on the Kelsey S. issue, and the court responded that it wanted to review the Wisconsin divorce proceeding documents before giving such a ruling because whether those documents indicated that Father had demonstrated similar conduct in the past had "some relevancy." In that context, the court went on to state that it believed, pursuant to Evidence Code sections 1101 to 1104, 1108 and 1109, that Father's prior acts were relevant to the nature and extent to which Father had acted as a father in a positive manner in the present case. The court also indicated that it believed it needed to review the court documents, but maybe not the associated testimony. Thus, it appears the court's statement was in reference to the court determining whether the records from the Wisconsin divorce proceedings corroborated Mother's testimony.
Further, even if the court was referring to reviewing D.K.'s testimony regarding Father's prior conduct, the court acknowledged in its written opinion that it was aware that D.K. had a great deal of animosity toward Father and referenced D.K.'s testimony in only one instance as corroborating Mother's version of the events surrounding her pregnancy and her decision to leave Wisconsin. By contrast, the court clearly made its own independent credibility determinations and found that Father was not credible based on his own inconsistent testimony. Thus, the record does not support Father's contention that character evidence presented by D.K. was an integral part of the court's Kelsey S. determination, and there is not a reasonable probability that the outcome would have been more favorable to Father even if Father's counsel had objected and the court had excluded the testimony. D. Mother's Statements to Bonding Expert
Finally, Father asserts that his counsel provided ineffective assistance by failing to object to what Father alleges was inadmissible hearsay testimony regarding statements Mother made to an expert, Dr. Yglesias, presented by the Z.'s, on the topic of bonding and the best interests of N.Z. Father argues that his attorney's failure to object to the testimony was prejudicial because Dr. Yglesias relied on Mother's statements in concluding that there was a high likelihood that Father would be abusive toward N.Z. if N.Z were placed in his care. However, Dr. Yglesias was testifying as an expert witness regarding bonding, attachment, and the best interests of the child, N.Z. In that context, she was permitted to state her ultimate opinion as to the same and to provide a basic description of the evidence that she relied on in forming that opinion. (Evid. Code, § 801, subd. (b); People v. Sanchez (2016) 63 Cal.4th 665, 685 ["Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so."]; In re Fields (1990) 51 Cal.3d 1063, 1070.) Even if it was error to admit Dr. Yglesias's testimony regarding Mother's statements, Dr. Yglesias still could have relied on those statements in forming her opinion and presenting it to the court. Further, Mother had also personally testified to many of the same things that she told Dr. Yglesias and that Dr. Yglesias repeated during her testimony. Thus, there was no prejudice to Father as a result of the allegedly inadmissible testimony.
Based on the foregoing, we conclude that there is not a reasonable likelihood that the outcome of the hearing would have been more favorable to Father if any of the evidence at issue had been objected to and excluded. Therefore, we need not consider whether Father's counsel's performance fell below the reasonableness standard.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.