Opinion
2d Juv. No. B299547
05-26-2020
In re S.F., a Person Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. G.C., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18JV00362)
(Santa Barbara County)
The biological father of a minor child appeared at the mother's Welfare and Institutions Code section 366.26 hearing and claimed to be the presumed father. The juvenile court found the father did not qualify as the presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated. --------
FACTS
In September 2018, Santa Barbara County Child Welfare Services (CWS) filed a juvenile dependency petition as to three children, including S.F., the child who is the subject in this matter. S.F.'s mother (Mother) was in an automobile accident with S.F. in the car. Mother is suspected of driving under the influence of illegal drugs. The juvenile court ordered all three children placed with the maternal grandmother (Grandmother).
Mother did not appear at the jurisdiction or disposition hearing. Mother's boyfriend appeared and denied he was S.F.'s father. Based on a DNA test, the juvenile court found the boyfriend not to be the father. He was dismissed from proceedings. Mother was denied reunification services, and the matter was set for a section 366.26 hearing.
G.C. (Father) appeared at the section 366.26 hearing on April 18, 2019, and claimed to be the presumed father. His paternity was confirmed by a DNA test. CWS and the child's attorney argued, however, that he did not satisfy the criteria stated in Kelsey S. to be a presumed father. The juvenile court held a contested hearing.
Father's Testimony
Father testified as follows:
Mother and Father were friends. Father claimed they were intimate only once in April 2016, but they remained friends thereafter. About a month into the pregnancy, Mother told Father she was pregnant, and that the child might be his. The child, S.F., was born in January 2017.
In February or March 2017, Father learned of the birth of the child through Facebook. He saw a picture of the child and had a feeling the child was his. He asked Mother if the child was his. Mother said no, and that a DNA test showed her boyfriend was the father.
About a week later, Mother posted more pictures of the child. Father became convinced that the child was his. He contacted Mother again and she reiterated that a DNA test showed her boyfriend was the father. Father did not believe her.
Father contacted one of Mother's relatives stating he believed the baby was his, and asking the relative to talk to Mother. Mother replied not to contact her family, and that the baby was not his. Father claims that a few minutes later, Mother sent him "a picture of a DNA paper." Father did not produce any such document. Father claims the DNA paper convinced him the child was not his.
Father did nothing further until he heard from a friend of Mother in late 2018. The friend told him to contact CWS because the baby was his. Father contacted CWS, and CWS arranged for a DNA test. About eight weeks later, Father attended his first court hearing, prior to getting the results. Father learned conclusively in April 2019 that the child was his.
Father visited the child at the home of Grandmother once before the results of the DNA test came back, and twice after he learned the child was his.
Cross-examination
Father admitted that he did not visit the child other than when he had to come to Santa Maria for court appearances. The total time he spent with the child was four and a half hours. He said he lived out of town, and his work prevented him from visiting more. During the time Father believed the child could be his, he did not send Mother any money or go with her to the doctor when she was pregnant. He knew the child was living with Grandmother, but has never offered her any financial assistance.
Juvenile Court Findings
"The issue is does he qualify as a Kelsey father? The short answer is no, he does not. If you look at the Kelsey line of cases, it has people - - in fact, the very first case, Kelsey itself, was a man that stepped forward two days after birth, saying I'm the dad. He wasn't wed to the mother. Says, I'm the dad and filed an action to establish that, but the issue is full commitment to the child. [¶] What could he have done, you say? Here's what he could have done: When he was told from the mother that she's pregnant and he's the dad, at least he suspected he might be the dad, let's take a test when the child is born. I might be the dad. I want to provide financial assistance, that's my child you're carrying. Are you going to prenatal care? I want to make sure that my child is raised properly, birthed properly. That's someone that steps forward from the get-go and says, this is my child, I'm going to make sure that things are done right and taken care of. [¶] I'm not disparaging the father, because I agree, everything here, he's a good dad. He has his child, there's no evidence contrary to that, but that's not the standard. The child is as to the child before me, what has been his commitment that's been demonstrated? It's simply nonexistent. To see the Facebook pages and say that is my child and take no further action, that doesn't demonstrate full commitment. There's been no financial commitment at this point to the child whatsoever. [¶] The fact the mother may or may not have - - I'm not really convinced on the evidence, which is simply his testimony he got some document. If the document was before me and it was a strange looking document, you might say, okay, why didn't you pursue that further, or if it does look real, it might be something different to consider, but I don't have that before me. It simply is testimony that he got a document that says the other man is the biological father and at that point he just gave up. Meanwhile, the child continues along without any kind of connection or relationship with her father. There's been not a full commitment demonstrated to the child, other than visitation now, which is appropriate and not an issue; that's fine. There's not the full commitment to justify Kelsey S. findings."
DISCUSSION
The juvenile court cannot terminate the parental rights of a presumed father unless he is found unfit to be a parent. (Kelsey S., supra, 1 Cal.4th at p. 849.) A presumed father must promptly come forward and demonstrate a full commitment to his parental responsibilities—emotional, financial, and otherwise. (Id. at p. 849.) If the father is restricted in his ability to act as a father, he must demonstrate that he has done all he could reasonably do under the circumstances. (Id. at p. 850.)
We review the findings of fact by the juvenile court under the substantial evidence test. (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.) We independently review the conclusion of the trial court. (Ibid.)
Here, when Mother was pregnant she informed Father that he might be the child's father. Shortly after the child was born he saw pictures of the child and became convinced he was the child's father. Yet he did not insist on a DNA test until the last minute, when a section 366.26 hearing was pending. He has never offered any financial support, even after the DNA test showed he is the father. Father claims he only became convinced he was not the father when Mother showed him a "DNA paper" allegedly showing Mother's boyfriend to be the father. But Father failed to provide any such paper. The juvenile court was not required to find Father's testimony credible.
The evidence shows that in spite of knowing he could be the father from the time of Mother's pregnancy, Father has never offered emotional or financial support, and did not seek to establish paternity until the child was two years old when the section 366.26 hearing was pending. Father has failed to carry his burden of showing he qualifies as the presumed father.
DISPOSITION
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A. Rothstein, Deputy County Counsel, for Plaintiff and Respondent.