Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Julian Cimbaluk, Super. Ct. No. AD75961, Temporary Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
John L. Dodd & Associates and John L. Dodd for Plaintiff and Respondent.
OPINION
MOORE, J.
Biological father Marco M. appeals from an order terminating his parental rights to the minor, Tyler O., freeing Tyler for adoption by Jose O. Marco argues the court made numerous errors, including denying him presumed father status under both the relevant statutes and case law. We find no error and affirm.
In the interests of justice and no opposition having been received, Marco’s request to file a supplementary opening brief is granted.
I
FACTS
Marco’s primary challenges in this case are to the sufficiency of the evidence. We therefore “review the facts most favorably to the judgment, drawing all reasonable inferences and resolving all conflicts in favor of the order.” (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.) We agree with Jose that Marco’s statement of facts does not reflect the facts most favorable to the judgment; indeed, it largely reflects his own self-serving version of facts. Nonetheless, in the interests of justice, we do not deem Marco’s arguments as waived. We do not, however, accept Marco’s version of facts that are disputed in the record and do not support the judgment.
Jose filed a request to adopt Tyler as a stepparent on July 25, 2006, when Tyler was six years old. The request stated that Jose had married Tyler’s mother, Misty, on July 1. The mother, Misty, filed her consent thereafter. In February 2007 probate court services filed its report. The report did not reveal any negative indications with respect to Jose. The investigator’s interview with Tyler “revealed he has established a close and positive relationship with the petitioner, and wants to be adopted by him.” The investigator also contacted Marco, who stated he was “completely opposed” to the adoption. Marco reported that he found out that Tyler was his biological son in 2005, and that he last saw Tyler in 2006, after which Misty did not permit further contact.
Pursuant to the court’s request, Marco submitted a statement to the court detailing his relationship with Misty. He alleged the following facts. He stated that Tyler was the result of a “one-night stand” with Misty that occurred while she and Jose were dating. When Misty became pregnant, she allowed Jose to believe that Tyler was Jose’s child, and Jose was named on Tyler’s birth certificate. When Tyler was about a year old, she and Jose broke up, and thereafter she informed Jose that he was not Tyler’s father. Later paternity testing proves this to be accurate. Marco claimed that after this occurred, he first became aware of Tyler’s birth and decided he wanted a relationship with him. The family court concluded that Marco owed child support from January 2005 the date of the paternity test. He asserted that during the child support proceedings, Misty admitted that she did not inform Marco that he was Tyler’s father for more than four years after his birth. Marco stated that after Misty and Jose began dating again, Misty changed her phone number and refused Marco further contact with Tyler. He claimed he filed a custody case seeking partial custody of Tyler, and Misty and Jose filed the instant adoption petition in response.
Due to Marco’s opposition, the court investigator deferred to the court’s resolution of the adoption. On February 27, 2007, Jose filed a petition to determine Marco’s parental rights, if any, and the necessity of his consent pursuant to Family Code section 7662. The matter proceeded to a hearing. Testimony at the hearing contradicted Marco’s written statement. Misty testified that when she learned she was pregnant in 1999, she told her sister, Jose and Marco. She stated that she did not know if the child was his or Jose’s, but it was “probably more likely” that the child was Marco’s.
Subsequent statutory references are to the Family Code.
Misty testified that she had about three additional conversations with Marco about her pregnancy. She asked him to take a paternity test, and stated the he agreed he would do so when he “got the money together.” She asked him twice after Tyler was born to take a paternity test, once when Tyler was about a month old, and on another occasion in January 2001. Unlike Jose, who went to doctor’s appointments during the pregnancy, Marco did not participate or assist her in any way. Misty testified that when Tyler was born in March 2000, Jose agreed to have his name placed on the birth certificate as the father.
A September 2001 DNA test confirmed that Jose was not the father. Misty testified that when she approached Marco with this information, he said that he did not “‘want to think about it right now, just leave me alone.’” Misty also showed the paternity test to Marco’s mother and sister around the same time. After that, they would see Tyler about twice a week at their home. Misty stated that if she and Tyler were at the house when Marco arrived, “he would leave angry, just yell and leave.” Misty stated that she had contact with Marco’s mother and sister over the next four or five years.
From 2002 to 2005, Misty participated in the CalWORKs program to become trained as a nurse. Misty and Jose temporarily broke up in 2003. CalWORKs began a paternity action against Marco in February 2005 obtaining a judgment for support in the amount of $254 per month, which he began to pay in October 2006 after the adoption proceeding began. His support payments were, according to Misty, intermittent. Misty stated that Marco never gave Tyler any gifts or birthday or holiday cards, although his family did. Misty testified that Marco’s first visit with Tyler was in July 2005 which was a trip to the zoo for Marco’s birthday. The visits that followed, according to Misty’s testimony, were sporadic, with about four occurring during a one-year period.
Misty and Jose eventually reconciled. She testified that she offered Marco a weekend visitation plan, but he refused. Misty stated that once Marco learned that Jose was back in their lives, he became “very, very angry” and would leave “screaming and yelling” messages on her answering machine. At that point, she changed their phone number and ceased contact.
Marco’s testimony presented a quite different version of the facts. Consistent with his prior statement, he first testified that Misty had never told him that Tyler might be his son. He claimed he was not shown the results of Jose’s DNA test until late 2004 or 2005, and he agreed he did not visit Tyler until 2005. His own DNA test in 2005 confirmed he was the biological father. He then admitted, however, that he had a conversation with Misty about her pregnancy after they had had sex. He claimed she never told him that he might be the father.
At the conclusion of the hearing, the court ruled that Marco was an alleged natural father, not a presumed father, because he had not taken the child into his home within the meaning of section 7611, subdivision (d). It further found that he had not exercised his parental rights in a timely fashion as required by relevant case law, specifically, Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). The court found it was in Tyler’s best interest that the adoption proceed and terminated Marco’s parental rights.
II
DISCUSSION
Presumed Father Status Under the Family Code
Marco first argues that the trial court erred in concluding that he was not a presumed father. “When findings of fact are challenged in a civil appeal, we are bound by the familiar principle that ‘the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We view the evidence most favorably to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. [Citation.] Substantial evidence is evidence of ponderable legal significance, reasonable, credible and of solid value. [Citation.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.) The testimony of a single witness may alone constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) The appellate court cannot reweigh the credibility of witnesses or resolve conflicts in the evidence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622.) Further, this court is bound by implied findings made by the trial court, such as rejecting a witness’s testimony. (Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182.)
In relevant part, section 7611 provides that a man has presumed father status if: “He receives the child into his home and openly holds out the child as his natural child.” (§ 7611, subd. (d).) Misty testified that Marco did not ever receive Tyler into his household and hold him out as his child. While Marco attempts to emphasize the “holding out” portion of the statute, both prongs must be met. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050-1051 (Michael H.).) Here, there was evidence that Marco did not even have a consistent home. He sometimes lived with his mother, sometimes with a friend, and he was out of the country for a time. Marco asserts that he resided with his mother, therefore, accepting him into her home was sufficient, but the trial court could properly find that his mother’s residence was not, indeed, Marco’s home, or that Marco ever accepted Tyler into it.
In In re Spencer W., the court addressed a situation where a putative presumed father resided in his mother’s home. The court held: “The evidence here would permit a trier of fact to conclude that neither foundational element necessary to presumed father status was present. First, Leonard was required to receive Spencer into his home. The evidence permitted the conclusion that Leonard did not receive the child into his home, but instead that mother permitted Leonard to reside in her home, and that Leonard’s residence with Spencer was not demonstrative of Leonard’s commitment to the child but reflected that Leonard acted out of personal convenience and self-interest.” (In re Spencer W., supra, 48 Cal.App.4th at p. 1653.)
The distinctions that Marco claims with Spencer W., however, are facts entirely irrelevant to the issue of whether he took Tyler into his home. Further, there was substantial evidence from which the trial court could conclude that the visits conducted at Marco’s mother’s home were insufficient to constitute taking the child into the home. Misty testified that the visits with Marco were infrequent and mostly with Marco’s mother and sister. Marco’s assertion that Tyler stayed overnight with him “on a fairly regular basis” is unsupported by any citation to the record.
Taken as a whole, there was substantial evidence from which the trial court could conclude that Marco did not take Tyler into his home. Thus, there was no error in finding that Marco did not have presumed father status under section 7611.
Kelsey S. Presumed Father Status
Marco further claims that the trial court’s findings that he did not meet the requirements of Kelsey S. is not supported by substantial evidence. In Kelsey S., the California Supreme Court held that “section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child’s biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child’s best interest.” (Kelsey S., supra, 1 Cal.4th at p. 849.) Under such circumstances, “[i]f an unwed [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 prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Ibid.)
“In determining whether a biological father has demonstrated such a commitment, ‘[t]he 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.]” (In re Zacharia D. (1993) 6 Cal.4th 435, 450. fn. 19.) Further, a biological father has no right to prevent an adoption “unless he ‘promptly’ demonstrated a ‘full commitment’ to parenthood during pregnancy and within a short time after he discovered or reasonably should have discovered that the biological mother was pregnant with his child . . . .” (Michael H., supra, 10 Cal.4th at p. 1054.)
Marco asserts that the trial court’s application of this standard here has “created an impossible standard for unwed fathers” and an “impossible burden for a father who had no knowledge of a pregnancy.” The record, however, does not support this factual conclusion. Marco admitted that he was aware of Misty’s pregnancy after their sexual encounter. Misty testified that she talked to Marco after she learned she was pregnant, she talked to Marco, and told him she did not know if the child was his or Jose’s, but it was “probably more likely” that the child was Marco’s. She asked him on three separate occasions to take a paternity test. This is not, as knowledge claims, “no knowledge” of a pregnancy. Indeed, it falls under the category of discovery of the pregnancy as discussed in Michael H.
This is not a close case. There was more than substantial evidence that Marco knew or should have known of the possibility that Misty was pregnant with his child. He took no action to assert his fatherhood until years after the fact. He does not, therefore, qualify as a presumed father under the Kelsey S. standard.
Judicial Notice of the Paternity Case File
Marco next claims the trial court abused its discretion by failing to take judicial notice of the family law case file. We review the court’s decision to admit or exclude evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
The trial court found that the file was irrelevant because the issue before the court was whether Marco was a presumed father or a Kelsey S. father, issues which were not pertinent to the family law case. We do not find an abuse of discretion in that reasoning, but even if we did, we would be an unable to make a finding of prejudice, because Marco has not lodged the file with this court or filed a separate request for judicial notice. We have no idea what is or is not in the file, and without that information, no finding of prejudice could be made. Without prejudice, there is no reversible error.
Abandonment
In a supplemental brief, Marco argues that the court could not properly find that section 7822 applied in this case. Under that section, a proceeding to free a child from parental custody and control may be brought if: “One parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent, with the intent on the part of the parent to abandon the child.” (§ 7822, subd. (a)(3).) “The failure to . . . provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent . . . [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .” (§ 7822, subd. (b).)
We note that it is unclear that the trial court considered section 7822, rather than relying purely on the presumed father issues discussed ante. Marco’s brief does not cite the portion of the record where this was addressed. Even assuming it is appropriate to raise this issue on appeal, we need not belabor the point. It is undisputed that Marco had no contact with Tyler until five years after his birth, and it is further undisputed that there was a period of no contact of more than one year. Thus, even had the trial court relied about section 7822, terminating Marco’s parental rights pursuant to this section would have been proper.
III
DISPOSITION
The order is affirmed.
WE CONCUR: O’LEARY, ACTING P. J. IKOLA, J.