Opinion
NOT TO BE PUBLISHED
Appeal from an order and judgment of the Superior Court of Orange County No. AD77774 Deborah J. Chuang, Judge.
Law Office of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman and Seth F. Gorman for Plaintiffs and Respondents.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
OPINION
FYBEL, J.
Introduction
An unwed, natural father who does not qualify as a presumed father does not have a right to withhold consent to an at birth, third party adoption unless the father shows that promptly on learning the birth mother was pregnant with his child, he came forward and demonstrated a full commitment to his parental responsibilities. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) If the father makes this showing, parental rights may not be terminated absent a finding of the father’s unfitness as a parent; otherwise, parental rights may be terminated and the adoption may proceed if that is in the child’s best interest.
D.L. is the alleged natural father of the minor, E.T. D.L. appeals from an order and judgment that granted the petition of E.T.’s adopting parents to determine his parental rights and whether his consent was necessary for adoption to proceed. The trial court found D.L. is not a statutory presumed father and does not have presumed father rights under Kelsey S., concluded E.T’s best interests were served by allowing adoption to proceed without D.L.’s consent, and terminated D.L.’s parental rights pursuant to Family Code section 7664. D.L. contends the trial court should have found he had the right under Kelsey S. to withhold consent to the adoption, thus requiring a finding of unfitness or abandonment to terminate his parental rights.
We conclude substantial evidence supported the trial court’s finding D.L. was not entitled to the right to withhold consent to the adoption under Kelsey S. and therefore affirm.
Facts
E.T. was born in October 2009. His biological mother is E.E.T., and D.L. is his alleged natural father. Plaintiffs S.C. and C.C. are E.T.’s adopting parents.
E.E.T. and D.L. started dating in August 2008, when she was a sophomore in high school in the Sacramento area. She was a cheerleader and a class officer in high school student government. D.L., who was a year ahead of E.E.T. in school, played on the high school football team. E.E.T. was 15 years old when she became pregnant and 16 years old when E.T. was born.
When E.E.T. and D.L. learned of the pregnancy in March 2009, they both promptly informed their families. E.E.T.’s parents were very supportive and explained the options to her. D.L. testified he wanted to have a child with E.E.T. and was excited about her pregnancy.
After learning she was pregnant, E.E.T. attended weekly counseling until June 2009. D.L. attended about three counseling sessions with her.
E.E.T. had her first appointment with an obstetrician/gynecologist (OB/GYN) on April 14, 2009. D.L. did not attend; he told her he did not have enough gas to take her to the appointment. E.E.T. took a picture of an ultrasound with her cell phone and sent it to D.L. He was angry that she had allowed the doctor to perform an ultrasound without him being there.
D.L. attended E.E.T.’s second appointment with the OB/GYN in May 2009. He did not say anything during the appointment, did not smile, and did not seem interested. When D.L. heard the fetus’s heartbeat, he did not smile or react. After the OB/GYN appointment, D.L., E.E.T., and her mother met with a financial counselor. D.L. did not offer to pay for any of the pregnancy expenses or take notes during the meeting; in the middle of it, he walked out of the room and waited in the hallway.
D.L. attended E.E.T.’s third appointment with the OB/GYN later in May. They learned E.E.T. was expecting a boy. Nine ultrasound photographs were taken. D.L. took all of them and would not give any to E.E.T.
E.E.T. and D.L. had a physical education class together. About once a week, he would tell her in class that he “just wants to be friends” and he did not care what she did about the baby as long as she did not make him pay child support. D.L. testified they talked about how to raise the baby.
D.L. broke up with E.E.T. in June by sending a text message to her best friend.
D.L. testified he did not have much contact with E.E.T. after breaking up with her. He did not contact her to find out how the pregnancy was going, how she felt, or if she needed anything. He testified that after awhile, they did talk a little bit at school.
E.E.T. sent D.L. a text message to inform him of her upcoming OB/GYN appointment on June 11, 2009. Her mother sent him directions to the appointment by text message. D.L. did not attend the appointment and did not ask E.E.T. how the appointment went.
In late June, E.E.T. started making plans to place the baby for adoption.
D.L. attended E.E.T.’s next OB/GYN appointment in July. He had sent E.E.T. a text message asking for appointment information and she provided it to him. D.L. did not go into the examination room with E.E.T. After the examination, E.E.T. spoke to D.L. in the waiting room. She was crying as she explained her belief that adoption would be best for the baby because both of them were teenagers, neither of them had a job or money, and neither had enough time to be the parent the baby deserved. She told D.L. she had chosen S.C. and C.C. to adopt the baby. D.L. did not object to adoption and offered no alternate plan for the baby. (D.L. testified he did object to adoption.) To E.E.T.’s father, D.L. said, in effect, he would “see you in court.”
E.E.T. met with S.C. and C.C. on July 19, 2009. D.L. was invited to the meeting but did not attend because “there was no necessity” and he “did not agree with the adoption.”
E.E.T. and D.L. met later in July to discuss adoption. E.E.T. explained again her plan was to place the baby for adoption with S.C. and C.C. “because that was the best decision for the baby, putting our feelings aside.” D.L. did not say what his plan for the baby was.
In August, D.L. sent E.E.T. a text message stating he did not love her and was engaged in sexual activity with another girl.
D.L. did not attend E.E.T.’s next two OB/GYN appointments in August. He never asked for the appointment dates. He did not ask E.E.T. how she and the baby were doing. (D.L. testified he did ask about upcoming appointments but E.E.T. did not respond to his text messages.)
On September 8, E.E.T. received a text message from D.L., saying he would agree to an adoption if she would get back together with him. When asked at trial whether he wrote that message, D.L. testified he did not remember doing so.
E.E.T. and D.L. went back to school in September. D.L. played varsity football, and E.E.T. was on the varsity cheerleading squad. The varsity football team and varsity cheerleading squad met weekly for dinner on the night before a football game. Both E.E.T. and D.L. attended all of the dinners. At one of these dinners in September or October, E.E.T. tried to talk to D.L. about adoption and to find out if he had a plan for the baby. D.L. told E.E.T. adoption was unnecessary because her family had enough money to take care of the baby even though his did not. He never asked her how she or the baby was doing.
Other than the weekly team dinners, E.E.T. and D.L. saw little of each other in September and October 2009. D.L. testified that between the team dinner at which he and E.E.T. spoke about adoption, and the day of E.T.’s birth in October, he did not speak to E.E.T. She provided D.L. information about her OB/GYN appointment on October 6, but he did not attend. He never asked her how the appointment went or how the baby was doing, and never asked about the baby’s due date. He did not ask about the date for the next two OB/GYN appointments in October and never asked how the appointments went.
E.E.T. attended prenatal classes. D.L. never offered to attend them. D.L. was working some and had enough money to buy tattoos at $100 or more each. But he never offered to pay any of the pregnancy expenses, never offered to support the baby, never offered E.E.T. financial assistance, and never gave E.E.T. any gifts. E.E.T. was not aware of anything D.L. did to prepare for the baby.
E.E.T. did not contact D.L. when she went into labor because he had never asked about or shown any interest in being with her when the baby was born. E.E.T.’s father testified he did not have any reason to believe D.L. or his family wanted to be at the hospital when the baby was born.
E.E.T.’s father notified D.L. of the birth on the same day the baby was born. The next day, D.L. and his family met with E.E.T., her parents, S.C., and C.C. at E.E.T.’s house to see the baby. D.L. said nothing during the meeting, and nobody objected to adoption. After the meeting, E.T. went home with S.C. and C.C.
After this initial visit at E.E.T.’s house in October 2009, D.L. visited E.T. three times, each visit corresponding with his attendance at a court hearing. S.C. and C.C. never refused D.L. a visit. During the visits, D.L. never asked how E.T. was doing. D.L. sent one letter to S.C. and C.C., stating: “I miss my son. I would like to know how he’s doing, that he’s okay. You have my return address. Please send me pictures. I have a package for you on the []way.” S.C. and C.C. sent pictures of E.T. to D.L., but he did not send the package because “[i]t didn’t work out at the time financially-wise.”
Procedural History
In November 2009, S.C. and C.C. submitted a petition in Orange County Superior Court to determine D.L.’s parental rights and whether his consent was necessary for adoption to proceed. The next day, D.L. filed in Sacramento County Superior Court a petition to establish parental relationship, order to show cause, and ex parte application for custody. The court denied D.L.’s application for failure to show proof of service and because the matter was more appropriately heard by noticed motion. Later in the same month, the court voided the filing of D.L.’s petition and order to show cause for failure to pay the filing fee or to obtain a fee waiver.
E.E.T. executed an independent adoption placement agreement formally placing E.T. with S.C. and C.C. Less than two weeks later, S.C. and C.C. filed an independent adoption request in Orange County. In December 2009, S.C. and C.C. refiled their petition to determine the parental rights of alleged natural father D.L. and to determine the necessity of his consent to adoption under Family Code section 7664.
In April 2010, the California Department of Social Services filed its preliminary report pursuant to Family Code section 7663, expressing no concerns with the ability of S.C. and C.C. to adopt E.T. if D.L.’s parental rights were terminated, and no concern with E.T.’s suitability for adoption. The report was updated in September 2010 with no concerns expressed.
In August 2010, D.L.’s counsel filed a motion for a finding D.L. should be accorded Kelsey S. rights. A hearing on D.L.’s motion was held on September 10, 2010. D.L., his mother, E.E.T., her father, S.C., and C.C. testified. At the conclusion of the hearing, the court denied D.L.’s motion and determined D.L. was not entitled to rights under Kelsey S. The court found: “This is a very close case I think because given the circumstances; however, I believe based on the testimony and the evidence, I found E[.E.T.]’s testimony as to what occurred during the pregnan[cy] to be more credible than what [D.L.] had testified to, and in that way, it appears that he was not willing to fully assume and come forward with his parental responsibilities, and that he was not being thwarted by [E.E.T.] or the prospective adoptive parents. And it appeared that while he was not happy with an adoption, he wasn’t entirely coming forward to take on the parental responsibilities. I don’t weigh that much into his ability to help pay for the pregnancy and birth expenses. He was 16, 17 years old. [¶] He did publicly acknowledge the paternity, and he did seek some legal action to seek custody of the child, albeit it was fairly late in comparison to when he should have known that an adoption was going forward. He could have filed the paternity earlier. Although, he’s 17 years old so I’m not going to hold that totally against him. [¶] I think the biggest factor against him was really that he didn’t come forward and promptly demonstrate a full commitment to his parental responsibilities, and for that I’m going to find that he is not a Kelsey S. father.” (Italics added.)
A second hearing was held to resolve S.C. and C.C.’s petition by determining the best interests of E.T. and whether D.L.’s consent was necessary for adoption of E.T. S.C., C.C., a child development psychologist, D.L., and E.E.T. testified. At the conclusion of the hearing, the court stated: “Having considered all of the testimony and all of the relevant evidence, this court finds that it is in the child’s best interests that an adoption be allowed to proceed, and the court is going to order that the consent of [D.L.] is not required for the adoption. [¶] The finding terminates all parental rights and responsibilities of [D.L.] regarding the child.”
D.L. appealed from the order terminating his parental rights. After the notice of appeal was filed, an “order and judgment” was entered, providing: (1) D.L. is not E.T.’s presumed father under Family Code section 7611, subdivision (d) or under Kelsey S.; (2) it is in E.T.’s best interest to allow adoption to proceed without D.L.’s consent; and (3) all findings are made by clear and convincing evidence. We treat the notice of appeal as validly filed after entry of judgment. (Cal. Rules of Court, rule 8.104(d)(1).)
Discussion
The sole issue raised by D.L. is whether the trial court erred by finding he was not entitled to the right under Kelsey S. to withhold consent to the adoption of E.T.
I.
Legal Framework: Unwed Father Rights, Family Code Section 7664, and Kelsey S.
The parental rights and duties of an unwed father depend substantially on whether he is a “presumed father.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050 1051 (Michael H.).) A presumed father is a man who qualifies as such under Family Code section 7611. A natural or biological 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, 449, fn. 15; Kelsey S., supra, 1 Cal.4th at p. 823, fn. 3.) In addition, an “‘alleged’ father” is “[a] man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status.” (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.)
For adoption, a difference between the rights of a presumed father and the rights of a natural or alleged father is the presumed father has the statutory right to withhold consent. A child having a presumed father may not be adopted unless the presumed father consents, regardless of the child’s best interests. (Kelsey S., supra, 1 Cal.4th at p. 825; see also Fam. Code, § 8604, subd. (a).) In 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.” (Kelsey S., supra, 1 Cal.4th at p. 825; see Fam. Code, § 7664, subd. (b).)
When a mother relinquishes a child for adoption or consents to adoption, an identified natural father must be given notice. (Fam. Code, § 7664, subd. (a).) If the natural father or a man representing himself to be 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.” (Id., § 7664, subd. (b).) “If the court finds that the man 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, it shall order that that person’s consent is not required for an adoption. This finding terminates all parental rights and responsibilities with respect to the child.” (Ibid.)
In Kelsey S., supra, 1 Cal.4th at page 849, the California Supreme Court held the equal protection and due process clauses of the United States Constitution guarantee an unwed, natural father the right to veto an adoption by withholding consent if the father 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. “ (Ibid.)
A court should consider all factors to determine whether an unwed, natural father’s parental rights are entitled to constitutional protection. (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 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.)
In sum: “[A]n unwed father has no federal constitutional right to withhold consent to an at-birth, third party adoption... unless he shows that he promptly came forward and demonstrated as full a commitment to his parental responsibilities as the biological mother allowed and the circumstances permitted within a short time after he learned or reasonably should have learned that the biological mother was pregnant with his child.” (Michael H., supra, 10 Cal.4th at p. 1060.)
II.
Substantial Evidence Supported the Trial Court’s Finding D.L. Did Not Have Kelsey S. Rights.
D.L. does not qualify as a statutory presumed father under Family Code section 7611, and he does not claim to be one. His right to withhold consent to E.T.’s adoption depended on whether he met the conditions set forth in Kelsey S. We apply the substantial evidence test to the trial court’s determination D.L. was not entitled to the rights of a presumed father under Kelsey S. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679 680.) “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.” (Id. at p. 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.)
Substantial evidence supported the trial court’s finding D.L. was not entitled to presumed father rights under Kelsey S. Though D.L. claimed to be excited initially about the prospect of becoming a father, he did not step forward to accept his paternal responsibilities. E.E.T. testified he did not attend her first OB/GYN appointment and attended only three of the weekly counseling sessions. He attended the second and third OB/GYN appointments but displayed little interest and behaved selfishly with the ultrasound pictures. He did not attend prenatal classes with E.E.T. He told E.E.T. about once a week in class that he “just wants to be friends” and did not care what she did about the baby as long as she did not make him pay child support.
Rather than provide emotional support for E.E.T., D.L. broke up with her in June 2009 by sending a text message to her best friend. D.L. conceded that after breaking up with E.E.T., he had little contact with her for several months. E.E.T. testified that when D.L. did communicate with her in August, it was to tell her he did not love her and had another girlfriend with whom he was engaged in sexual activity. When school resumed, and D.L. and E.E.T. saw each other at the team dinners, he never asked her how she was or what he might do to help her during the pregnancy.
Meanwhile, E.E.T. maturely faced the difficult decision whether to place the baby for adoption. Rather than assist E.E.T. in making that decision and providing her support, D.L. told her (by text message) he would consent to adoption if she got back together with him. D.L. never offered a plan for taking care of the baby and told E.E.T. at a team dinner adoption was unnecessary because her family had the means to support the child. In the few months leading to E.T.’s birth, when D.L. still had the chance to step forward and demonstrate responsibility, he did nothing, and did not speak with E.E.T.
D.L.’s version of events during E.E.T.’s pregnancy differed in significant respects from that related by E.E.T. The trial court, however, expressly found E.E.T. to be more credible than D.L., and we abide by the court’s credibility determinations. (Leff v. Gunter (1983) 33 Cal.3d 508, 518.)
D.L. made no effort whatsoever to provide any financial support for E.E.T. and the baby. E.E.T. testified he paid for none of the pregnancy expenses, never offered to support the baby, never offered her financial assistance, and never gave her any gifts. He walked out of a meeting with a financial counselor and waited in the hallway. It is true, as the trial court noted, D.L. was only 16 or 17 years old—a mere teenager—but teenagers do work and earn money. D.L. had enough time to play varsity football while E.E.T. was pregnant and enough money to buy tattoos. He testified he earned some money working part time, but used none of his money to help with pregnancy expenses. Although D.L. likely would not have been able to pay for all of the pregnancy expenses, he could and should have made the effort to pay for some of them commensurate with his ability. D.L. made no effort, however, to provide financial support. Even after E.T. was born, he never sent him the promised package because “[i]t didn’t work out at the time financially wise.”
D.L. did publicly acknowledge paternity and did take prompt legal action to seek custody of E.T. once he was born. But his efforts can be interpreted as designed more to block adoption than to accept custody and responsibility for E.T. In the months after E.E.T. first told D.L. she planned to place the baby for adoption, D.L. never offered an alternate plan. And before E.T. was born, D.L. was less than forthright and direct in expressing any opposition to adoption. In July 2009, he told E.E.T.’s father he would see him in court, presumably to challenge adoption, and declined to meet with S.C. and C.C. But in September, D.L. told E.E.T. he would agree to adoption if she got back together with him. At a team dinner, he said adoption was unnecessary because E.E.T.’s family had the means to take care of a baby. When D.L. first saw E.T. and met with E.E.T., S.C., and C.C., he did not mention opposition to adoption.
Such equivocation is not consistent with a willingness to assume full commitment to custody of a child. “[D]uring pregnancy the mother must make many important decisions, most importantly whether to have an abortion, to prepare an adoption plan, or to keep the baby, and that she has only a relatively short time to make and implement her choice. It is therefore important that the father give the mother prompt notice whether he plans to object or consent to adoption so that she can evaluate that and other options on an informed basis.” (Michael H., supra, 10 Cal.4th at p. 1055.)
Substantial evidence too supported the trial court’s finding D.L. was never thwarted by E.E.T., S.C., or C.C. E.E.T. and her family actively sought D.L.’s involvement in her prenatal care by notifying him of OB/GYN appointments and by providing him transportation to the appointments he did attend. Neither E.E.T. nor her family prevented D.L. from attending counseling or prenatal classes. E.E.T. explained to D.L. why she believed adoption was best for the baby and on several occasions asked him, without success, if he had an alternative plan. There was no evidence E.E.T. ever tried to prevent D.L. from communicating with her. E.E.T. did not inform D.L. when she went into labor because it was clear by that point he was not interested. Nobody ever thwarted D.L. from demonstrating a commitment to provide some degree of financial support.
D.L. asserts he testified and consistently expressed his willingness to take immediate custody of E.T. As the trier of fact, the trial court was entitled to weigh D.L.’s testimony and disbelieve the sincerity of his stated commitment. Perhaps more importantly, actions speak louder than words: Regardless of what D.L. said about willingness to take custody, his actions were at odds with accepting a full commitment to parental responsibilities. Evidence of D.L.’s actions, or to be more accurate, inaction, in accepting those responsibilities constituted substantial evidence to support the trial court’s determination he did not have the right under Kelsey S. to withhold consent to adoption of E.T.
We commend the trial court for ably handling this matter and producing an excellent record and statement of findings. We agree with the trial court in all but one respect: This was not a close case. The evidence established clearly and convincingly that D.L. did not promptly come forward and demonstrate a commitment to assume his parental responsibilities to the extent permitted by the circumstances.
The trial court made a finding under Family Code section 7664, subdivision (b) that E.T.’s best interests were served by allowing adoption to proceed without D.L.’s consent. D.L. does not challenge that finding, the effect of which was to terminate his parental rights to E.T. (Fam. Code, § 7664, subd. (b).)
Disposition
The order and judgment granting the petition of S.C. and C.C. and terminating D.L.’s parental rights to E.T. are affirmed. S.C. and C.C. to recover costs incurred on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.