Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Daniel Zeke Ziegler, Judge. Los Angeles County Super. Ct. No. CK38563.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Objector and Appellant.
No appearance for Plaintiff and Respondent.
Karen B. Staler, under appointment by the Court of Appeal, for Minor.
S.L. is the biological father of J.M. (minor). By this appeal, S.L. challenges the juvenile court’s finding that F.M. is the minor’s presumed father. For various reasons we shall discuss, S.L. claims he should have been named the presumed father instead of F.M. We find no error and affirm.
FACTS
S.L. and A.M. (mother) lived together during the first six months of her pregnancy with the minor. After S.L. went to jail, mother moved in with F.M. He was the father of two of mother’s other children. When the minor was born, F.M. signed a declaration of paternity. The minor lived with mother and F.M. for the first four months of the minor’s life. During that period, F.M. held the minor out as his own and told neighbors he was the father.
In February 2008, the Department of Children and Family Services (Department) received a referral that mother was arrested for walking on the freeway with a beer in one hand and the minor in the other. The minor was detained. After mother identified S.L. as the biological father, the juvenile court appointed counsel for S.L. and ordered a paternity test. S.L. was eventually released from prison on July 4, 2008, after serving a 12-month sentence for grand theft auto. However, on July 30, 2008, he was arrested for receiving stolen property and sent to county jail.
On September 10, 2008, the juvenile court held a paternity hearing. S.L. filed form JV-505 stating that he was the minor’s father, acknowledging financial responsibility and requesting a judgment of paternity. The Department reported that DNA analysis concluded that S.L.’s probability of paternity was 99.98 percent. Mother explained that she asked F.M. to sign the declaration of paternity only because she was scared that the minor would be removed from her custody. She testified that while S.L. was incarcerated, he wrote and asked about the minor. S.L. testified that he wrote all the time. He did not, however, know F.M. had assumed a father role, or that F.M.’s name had been placed on the birth certificate. F.M. testified that he told his neighbors that the minor was his son.
S.L. and F.M. each requested a declaration of presumed father status. This prompted mother’s counsel to point out that if the juvenile court determined that both men qualified to be presumed father, then the juvenile court would have to apply Family Code section 7612 and choose only one. In analyzing the issue, the juvenile court stated that S.L. appeared to qualify as presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because he stepped forward to claim paternity as soon as he was able. Further, it appeared that he might qualify for presumed father status for the additional reason that he filed form JV 505 and, in essence, voluntarily declared paternity. However, F.M. also qualified for presumed father status because he held himself out as the minor’s father and received the minor into his home. The juvenile court indicated that it was required to balance the minor’s best interests in deciding whether S.L. or F.M. was the presumed father. Pivotally, F.M. was the only father the minor had ever known, and F.M. had a relationship with mother. As a result, the juvenile court concluded that F.M.’s presumption outweighed S.L.’s presumption. F.M. was named presumed father.
All further statutory references are to the Family Code unless otherwise indicated.
This timely appeal followed.
STANDARD OF REVIEW
When reviewing a finding of presumed father status, we apply the substantial evidence test. (In re A.A. (2003) 114 Cal.App.4th 771, 782.) We consider the evidence in the light most favorable to the prevailing party by indulging “every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
DISCUSSION
S.L. argues the following: (1) there is insufficient evidence to support the finding that F.M. is the presumed father; (2) F.M. is precluded by the disentitlement doctrine from being a presumed father; (3) F.M. is equitably stopped from claiming to be a presumed father; and (4) pursuant to Kelsey S., S.L. is entitled to be the presumed father. These arguments lack merit.
1. Sufficiency of the evidence
According to S.L., the juvenile court erred when it found F.M. to be the minor’s presumed father because his declaration of paternity was falsified. This argument is unavailing.
The juvenile court set aside the voluntary declaration of paternity. It found that F.M. was the presumed father under section 7611, subdivision (d), a provision which presumes a man to be a natural father when “[h]e receives the child into his home and openly holds out the child as his natural child.” (§ 7611, subd. (d).) This finding has not been challenged. Impliedly, however, S.L. suggests that the juvenile court’s finding was not supported by sufficient evidence because there was no evidence that F.M. told his coworkers that he was the minor’s father. But F.M. testified that he told his neighbors, and his testimony was sufficient evidence.
2. The disentitlement doctrine does not apply.
S.L. argues that the disentitlement doctrine precludes F.M. from claiming presumed father status.
To support this contention, S.L. cites In re Claudia S. (2005) 131 Cal.App.4th 236 (Claudia S.). It provides: “The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party ‘stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]’ [Citation.]” (Claudia S., supra, 131 Cal.App.4th at p. 244; In re Amelia S. (2000) 82 Cal.App.4th 1224 [father who absconded with daughter not permitted to appeal an order placing her in foster care].)
S.L. does not analyze the disentitlement doctrine, so we do not know how he proposes that we apply it. We deem the argument waived. Indeed, “[i]t is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) In addition, there is no indication in the record that this issue was raised below, which also results in a waiver. (See Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1.) To be complete, we note that there is no evidence in the record that F.M. requested presumed father status while in violation of a court order.
3. Equitable estoppel does not apply.
F.M. signed a paternity declaration even though he knew he was not the minor’s father. That paternity declaration was set aside. As a result, S.L. argues that F.M. is equitably estopped “from asserting a claim for presumed father status because of his own objectionable conduct.”
Our Supreme Court, in precedent we are bound by, teaches that a “valid claim for equitable estoppel requires: (a) a representation or concealment of material facts; (b) made with knowledge, actual or virtual, of the facts; (c) to a party ignorant, actually and permissibly, of the truth; (d) with the intention, actual or virtual, that the ignorant party act on it; and (e) that party was induced to act on it. [Citation.]” (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584.) For S.L. to prevail, he was required to demonstrate that these elements have been met. He made no attempt, which is enough for us to pass the issue without consideration. (Tan v. California Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 800, 811.) Though it is academic, we nonetheless wish to point out that the factual background does not establish that S.L. detrimentally relied on any statements or conduct by F.M.
4. The Kelsey S. argument is unavailing.
S.L. contends that we should reverse and remand with instructions that he be named the presumed father pursuant to Kelsey S.
We turn to this issue.
Kelsey S. held that “‘[i]f 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.’” (In re J.L. (2008) 159 Cal.App.4th 1010, 1023.) In dependency cases, it has been held that Kelsey S. status permits a father to “effectively qualify for presumed father status.” (Ibid.; but see In re Vincent M. (2008) 161 Cal.App.4th 943, 955–956 [a late appearing biological father is not entitled to presumed father status under Kelsey S. and cannot obtain reunification services unless he files a section 388 petition and satisfies the best interest of the minor test].)
Assuming without deciding that S.L. qualified as a presumed father based on Kelsey S., the juvenile court was presented with two candidates for presumed father status. As a result, it was required to apply section 7612, subdivision (b) and decide whether S.L.’s or F.M.’s presumption should control. (In re Elijah v. (2005) 127 Cal.App.4th 576, 584.) The record indicates that the juvenile court did exactly that and selected F.M. as the presumed father. S.L. does not contend that the juvenile court improperly applied section 7612. Instead, he states: “The constitutional right to parent held by the Kelsey S. father overrode California’s statutory scheme for determining paternity and the rights thereby afforded fathers.” Presumably, S.L. contends that section 7612 is unconstitutional.
The problem for S.L. is that Kelsey S. did not hold that section 7612 is unconstitutional. Rather, it held that former Civil Code section 7004 and the related statutory scheme pertaining to adoption proceedings violated “the federal constitutional guarantees of equal protection and due process for unwed father 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 a child’s best interest.” (Kelsey S., supra, 1 Cal.4th at p. 849.) But section 7612 does not permit the termination of parental rights, and it is not an adoption statute. Because Kelsey S. is not on point, S.L. must attack section 7612 on different grounds.
All S.L. informs us, however, is that “[t]he actions of the juvenile court in setting aside the voluntary declaration of [F.M.] and then improperly weighing ‘competing presumptions’ of paternity were prejudicial and require reversal.” S.L. did not cite any case law establishing that weighing competing presumptions is improper. Nor did S.L. cite any law suggesting that section 7612 does not pass constitutional muster. We therefore deem the issue waived. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 [“Moreover, ABC fails to provide any analysis or argument in support of the assertion, which, for this additional reason, is not properly raised”].)
In any event, we do not perceive a constitutional infirmity. In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.) is illustration why. Citing Kelsey S., the father argued that Probate Code section 1516.5 is unconstitutional because it permits the termination of parental rights based solely on the best interest of the child. Our Supreme Court disagreed, pointing out that Kelsey S. was “concerned with the unequal treatment of natural fathers under the adoption statutes, as compared with mothers and presumed fathers. [Citation.]” (Charlotte D., supra, 45 Cal.4th at p. 1147.) Under the former statutory scheme, a natural father’s parental rights could be terminated on a showing of the child’s best interest. In contrast, a mother or presumed father had to consent to an adoption absent a showing by clear and convincing evidence of that parent’s unfitness. Further, a mother could prevent a natural father from receiving the child into his home, depriving him of presumed father status. (Id. at p. 1148) Probate Code section 1516.5, in contrast, is constitutional because it does “not prescribe a different standard for terminating the rights of natural fathers than it does for mothers or presumed fathers. [Citation.]” (Charlotte D., supra, at p. 1148.) Similarly, section 7612 does not prescribe varying standard for different categories of people.
Last it bears noting that our Supreme Court and the intermediate courts have repeatedly held that section 7612 permits a court to select a nonbiological father over a biological father when determining presumed father status. (In re Jesusa v. (2004) 32 Cal.4th 588, 604–606.)
DISPOSITION
The order is affirmed.
We concur: BOREN, P. J. CHAVEZ, J.
Section 7612, subdivision (b) provides: “If two or more presumptions arise under Section 7611 that conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.”