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In re Grace P.

California Court of Appeals, Fourth District, First Division
Apr 28, 2009
No. D053605 (Cal. Ct. App. Apr. 28, 2009)

Opinion


In re the Matter of GRACE P., a Minor. G.I. et al., Petitioners and Respondents, v. TAYLOR P., Appellant. D053605 California Court of Appeal, Fourth District, First Division April 28, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. A54989, George W. Clarke, Judge.

McINTYRE, J.

Taylor P. appeals a judgment of the superior court rejecting his status as a presumed father of his biological daughter, Grace P., terminating his parental rights as to her and transferring the matter to the Alameda County Superior Court for completion of proceedings on a petition by T.B. and G.I. to adopt her. Taylor contends that the trial court erred in finding that he was not entitled to rights as a presumed father in accordance with Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Based on the existence of substantial evidence in the record to support the court's finding, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Taylor and Shelby P. dated in high school and in 2007, when they were seniors, Shelby became pregnant with Grace. (All further relevant dates are in 2007 except as otherwise noted.) After discovering the pregnancy, Taylor and Shelby met with their families; at that meeting, Shelby indicated that she wanted to place the baby for adoption because Taylor was not ready to marry her and she wanted the baby raised in a two parent, Christian household. Taylor and his family were insistent that the baby not be placed for adoption and that they would raise the child themselves. Unbeknownst to them, Shelby and her parents had already hired an attorney to assist in finding adoptive parents for Grace.

After a brief hiatus, Taylor and Shelby continued to see each other over the summer, during which time Taylor worked part-time as a pool attendant. They also continued to have intimate relations, but the subject of her pregnancy continued to be a source of disagreement between them and so they had only a few discussions about it. Neither Taylor nor his family paid for any of Shelby's medical care expenses relating to the pregnancy.

At some point, Taylor and his mother moved back in with his grandparents so that they would have room and additional family members to assist in raising the baby, although Taylor stopped working in the fall so that he could play soccer at a local community college. He told Shelby that he had hired an attorney (although he had not in fact done so) and that he planned to seek custody of the baby.

At about the same time, Shelby was feeling stressed and told Taylor that she needed her space; based on her request, they only had infrequent contact with each other thereafter. In October, Shelby chose T.B. and G.I., an attorney couple from Oakland, as the prospective adoptive parents for Grace, again without disclosing this to Taylor. T.B. and G.I. were aware that Taylor did not want to place Grace for adoption, but felt that Taylor was not entitled to stop that from happening.

During the few contacts between Taylor and Shelby in the fall, he asked her whether she was going to the doctor and how she was feeling. He also inquired whether the baby was a boy or a girl, but Shelby indicated that she did not know. Later, Taylor asked Shelby for information about when and where the delivery was to take place; however, Shelby would not answer him because she did not want him to be at the hospital when she delivered.

Based on Shelby's refusal to provide him information about the delivery, Taylor filed an action in November to establish his paternity and to get custody of the baby; he was acting in propria persona at that time. In mid-December (at about the time Shelby was due), Taylor tried to call her and her father several times, but was unable to reach either of them and did not receive any response to his messages. Taylor, his mother and his aunt also contacted various hospitals to try to find out where Shelby was going to deliver, but were unable to get any information because Shelby had registered as a confidential patient.

Shelby gave birth to Grace in December; as a result of digestive problems, Grace was in the hospital's neonatal intensive care unit for a week, but was then released to the prospective adoptive parents, who took her to their home. Four days later, G.I. and T.B. commenced adoption proceedings in Alameda County. Taylor learned of the birth for the first time when he was served with the papers for that action; he and his mother immediately hired a lawyer.

Both Shelby and the prospective adoptive parents sought to transfer Taylor's action to Alameda County; however, Taylor succeeded in having the Alameda petition transferred and consolidated with his petition in San Diego. Taylor sought visitation and, over strenuous objections by Shelby and the prospective adoptive parents, the court ultimately granted his request. Taylor also completed a ten-week parenting course and brought toys, clothing and other items to his visits with Grace in Alameda County.

At trial, the court found Shelby and her family had thwarted Taylor's ability to participate in the pregnancy and support Shelby and the baby; it also found, however, that Taylor was not a presumed father as defined by statute, nor was he a father entitled to the rights of a presumed father in accordance with the analysis of Kelsey S. because "in terms of the provisions of the emotional support, financial support, [and] support of the mother, [Taylor's] actions reflect the fact that he chose his life over that of his child as more important."

The court found that "significant aspect[s]" of both Shelby and Taylor's testimony to be "incredible" and recognized that the prospective adoptive parents had not shown that Taylor was unfit as a parent, but concluded that since Taylor was not a Kelsey S. father, no such showing was required. It terminated Taylor's parental rights, found that it was in Grace's best interests to be adopted by G.I. and T.B. and transferred their adoption petition back to the Alameda County Superior Court for the completion of proceedings thereon. Taylor appeals the resulting judgment.

DISCUSSION

California law distinguishes between a presumed and a non-presumed father for purposes of determining that parent's rights over a child. (Fam. Code, § 7600 et seq. (the Uniform Parentage Act); Welf. & Inst. Code, § 361.5; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051-1052 (Michael H.); In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15.) A presumed father generally will be afforded the right to veto an adoption of his child by withholding his consent thereto, regardless of whether such action is deemed to be in the child's best interests. (Fam. Code, §§ 8604-8606; Michael H., supra, 10 Cal.4th at pp. 1051-1052.) By contrast, a biological father who does not qualify as a presumed father has no statutory right to block the adoption of his child unless he first proves that it is in the child's best interests that the adoption not proceed. (Fam. Code, §§ 7630, 7662, 7664, subd. (b); Michael H., supra, 10 Cal.4th at p. 1051.)

A presumed father is a man who meets one or more statutorily specified criteria; a man who has not legally married or attempted to legally marry the mother of his child generally will be able to achieve presumed father status only by "receiv[ing] the child into his home and openly hold[ing] out the child as his natural child." (Fam. Code, § 7611, subd. (d); In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) Although he admits that he does not qualify as a presumed father pursuant to the statutory criteria, Taylor argues that the court erred in denying him the same rights as a presumed father in accordance with the analysis of Kelsey S., supra, 1 Cal.4th 816.

In that case, the California Supreme Court held that the statutory distinction between biological fathers and presumed fathers "is constitutionally invalid... to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities." (Kelsey S., supra, 1 Cal.4th at p. 849, italics omitted.) Specifically, the court concluded that federal constitutional guarantees of equal protection and due process require that an unwed father who is unilaterally precluded by the child's mother from becoming a presumed father under the statutory scheme be afforded the rights of a presumed father if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities -- emotional, financial, and otherwise...." (Ibid.) Under such circumstances, the court held that "the child's well-being is presumptively best served by a continuation of the father's parental relationship," absent a showing that he is unfit as a parent. (Ibid.; see also In re Julia U. (1998) 64 Cal.App.4th 532, 540-544.)

In determining whether an unwed father has "come forward to grasp his parental responsibilities" so as to afford him the same rights as a presumed father, a court must consider the totality of the circumstances. (Kelsey S., supra, 1 Cal.4th at p. 849.) The conduct of both the mother and the father, before and after the child's birth, are relevant to this determination. (Ibid. [the father "must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit"].) As to the father, the court must look at whether he publicly acknowledged paternity, paid or offered to pay the pregnancy and birth expenses commensurate with his ability to do so and promptly took legal action to obtain custody of the child. (Ibid.; see also Michael H., supra, 10 Cal.4th at p. 1052 [holding that federal constitutional protections apply only where the unwed father has "come forward to participate in the rearing of his child" and acted as the child's father].)

Here, the superior court found that a consideration of the circumstances presented did not entitle Taylor to the same rights as a presumed father. Pursuant to the applicable standard of review, we must uphold the court's ruling if it is supported by substantial evidence in the record. (In re Spencer W., supra, 48 Cal.App.4th at p. 1652.) There is ample evidence in the record to meet this standard.

Taylor's brief repeatedly emphasizes that Shelby and the adoptive parents purposefully circumvented his "right" to establish himself as a presumed father. However, while the fact of circumvention is required to trigger the application of the analysis of Kelsey S., standing alone it is not sufficient to afford Taylor the rights of a presumed father. Rather Kelsey S. requires the court to view his conduct, in light of the circumvention, to determine whether he promptly asserted his parental rights.

As Taylor points out, much of the evidence presented at trial was conflicting on whether he offered to provide Shelby and her family with financial support during her pregnancy. Despite Taylor's evidence that he and members of his family made such an offer, the court could reasonably have found the testimony of Shelby and her parents that no such offer was made to them to have been more credible. (See Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622 [recognizing that it is the exclusive province of the trier of fact to determine the credibility of a witness].)

Moreover, Taylor admitted that he did not ever give Shelby any money to help defray the costs of the pregnancy or inform her that he was saving any money on Grace's behalf, and that during that time he spent more than $2,600 to play on-line games and to purchase gaming supplies. The evidence was also undisputed that after learning of the pregnancy, Taylor made no attempt to get a driver's license or to find a full-time job, despite the fact that that was the only way he would be able to obtain health care insurance for Grace, who continued to require special care after birth for her digestive problems.

The evidence was also essentially undisputed that Taylor failed to provide Shelby emotional support during the pregnancy. He disregarded Shelby's pleas that he not disclose the pregnancy to anyone outside their families, made derogatory comments to his friends about Shelby and not infrequently left or sent her nasty messages that upset her greatly.

Finally, there is also ample evidence in the record to support the conclusion that Taylor did not promptly attempt to assume his parental responsibilities as to Grace. (Kelsey S., supra, 1 Cal.4th at p. 849.) Shelby and her parents testified that Shelby was unequivocal from the beginning of her pregnancy about her desire to place Grace for adoption, testimony that was corroborated by their conduct in immediately hiring an attorney to assist in that process and by the evidence that Shelby and Taylor ended up arguing whenever they discussed the pregnancy. Despite Shelby's stated plans and Taylor's opposition to them, Taylor waited until very late in the pregnancy to file a petition to establish that he was Grace's biological father.

The foregoing evidence constitutes substantial evidence supporting the superior court's finding that Taylor did not "promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit." (Kelsey S., supra, 1 Cal.4th at p. 849; see also In re Sarah C. (1992) 8 Cal.App.4th 964, 972-973 [father's conduct in acknowledging the child as his to a few friends and family and caring for the child for a few months is insufficient to establish fatherhood within the meaning of Kelsey S. when he never sought to be listed on the birth certificate, never completed any paperwork with his employer to have the child named as a dependent or an insurance beneficiary, never provided a home for the child, contributed money for rent or food only once, and lived with the child only briefly in the mother's home].)

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs of appeal.

WE CONCUR: NARES, Acting, P.J., McDONALD, J.


Summaries of

In re Grace P.

California Court of Appeals, Fourth District, First Division
Apr 28, 2009
No. D053605 (Cal. Ct. App. Apr. 28, 2009)
Case details for

In re Grace P.

Case Details

Full title:In re the Matter of GRACE P., a Minor. G.I. et al., Petitioners and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 28, 2009

Citations

No. D053605 (Cal. Ct. App. Apr. 28, 2009)