Opinion
H048368
04-26-2021
In re C.S., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. P.J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 20FL00094)
Minor C.S. was born with several severe medical complications related to his mother's drug use while pregnant. Mother surrendered minor for adoption. Minor's biological father, who had briefly dated and cohabitated with mother early in her pregnancy, petitioned to obtain nonstatutory presumed father status. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).) After finding that father had not demonstrated the necessary commitment to his parental responsibilities required to be a Kelsey S. presumed father, the juvenile court terminated father's parental rights, and found it was in minor's best interest to be adopted by the foster parents who had cared for him since birth. Father appeals, and for the reasons stated here we will affirm the juvenile court's order terminating parental rights.
I. JUVENILE COURT PROCEEDINGS
Minor tested positive for amphetamines, chlamydia, and syphilis when he was born in October 2019. He was medically fragile, with several ailments including a heart defect, pyloric stenosis, breathing problems, and a wandering eye. He remained in the neonatal intensive care unit for nine days after his birth, at which point he was released into the care of foster parents. Mother relinquished her parental rights so that minor could be adopted by foster parents arranged by the Santa Cruz County Human Services Department Family and Children's Services Division (Department). Mother told the Department and hospital staff that she did not know the biological father's identity.
Father called the Department about a month after minor's birth. He told the Department he believed he was minor's biological father. Father also petitioned to establish a parental relationship with minor. The Department thereafter petitioned to terminate father's parental rights in January 2020, which led to a contested hearing in August 2020 where the juvenile court heard the following testimony.
Father testified that he was born in Mexico, did not speak until he was 12 years old, never attended school, and could not read or write. Father and mother, both homeless when they met, dated and cohabited under a "traffic bridge" for a couple months in early 2019. They broke up around April or May and stopped living together. Father visited mother twice at the abandoned building where she was living following their breakup, in around May or June. Father testified that mother "ran me off" each time he visited. Father told mother at the second visit that he had rented a room in a house, and asked her to move in with him. Mother refused to move in with him and called him crazy, and father never returned to see her before minor was born.
Father's testimony about how and when he learned about minor's birth was ambiguous and inconsistent. His initial testimony was that he learned from a friend named Roberto that mother had given birth and that minor had been taken away from her. Based on that information, he went to a community resource center (La Manzana Community Resources) and obtained the number for the Department, which he called about a month after minor was born. Father also testified that at some unspecified time he "went to all the hospitals and I gave [mother's] name and I was told she had given birth in Watsonville." On cross-examination, father stated his friend Roberto told him mother had been taken to the hospital the day the baby was going to be born. Father testified, "I went over on the day it had been born; when I went back the following day, I was told that he had been taken away."
Father worked as a farmworker, and rented a room in a house. His landlady had experience with raising a special needs child, and reportedly had baby furniture father could use. Father testified he would ask the landlady or her adult sons for rides to minor's medical appointments. (Father's driver's license was suspended.) Father testified that he previously used methamphetamine, that he had been sober for two years, but that he had had one relapse in early 2019. Father's counsel asked him about his older children from a former relationship. Father did not know their precise ages, but stated they were between 14 and 21 years old and lived in Mexico. Father had not had any contact with them in four years because he had lost the card with their contact information when his car was stolen. Father stated he had seen minor once during a video visit, and that he called the foster mother weekly for updates. (It appears the visit was via video due to the Covid-19 pandemic.)
On cross-examination by the Department's counsel, father admitted he knew where mother was living from when she moved away from him until she gave birth. He nonetheless visited her only twice. He acknowledged he did not give her any food, money, or other assistance after they stopped living together. He claimed that she refused any assistance he offered. He never asked to have additional visitation with minor, and he never attended any of minor's medical appointments. He never provided anything to the foster parents, such as toys. Father was aware of some of minor's medical issues, including issues related to his stomach, heart, and lungs. Father denied anyone had ever told him about minor's eye issue. Asked what future treatment minor might need related to his stomach, father stated: "Well, that I can't tell you. Only the doctors would know that whether he needs an operation to unblock that. Only the doctors would be able to tell you. I would not be able to tell you." Asked what issues related to minor's in utero drug exposure father would have to monitor, father answered "Take care of him." Asked what things would indicate to father that he needs to take minor to the doctor, father answered: "What I am thinking is that they'll do tests on him, they'll know how he is doing, how if he needs an operation or how it's going."
The foster mother testified that she met minor when he was one day old after the Department contacted her about a child available for adoption. The foster mother spent several hours each day with minor until he was released from the hospital. She never saw father there, nor did she hear from hospital staff that he had attempted to see minor. She was familiar with all of minor's health issues, described them in detail, and explained the types of specialized care minor might require for them. Father never offered foster mother assistance of any kind and never asked whether minor needed anything. Regarding the weekly calls she had with father, the foster mother testified that each lasted between one and two minutes. She testified that she described minor's medical issues (including the wandering eye issue), both during the single video visit and during the weekly phone calls. Other than the eye issue, father never asked her how the medical issues would be treated or what he would need to watch for if minor was placed in his care. Father never asked to attend minor's medical appointments, and also never asked how they went. The foster mother did not believe father understood the severity of minor's medical issues, and feared father was not paying complete attention during the phone calls. When she tried to explain the possible long-term consequences of minor's in utero drug exposure, father reportedly told her "that couldn't be because the drugs were out of his system." On another call when the foster mother explained minor's stomach and teeth had been hurting all week, father stated, "Oh, he's muy bien" and she had to correct him.
A social worker testified as an expert about the best interests of children related to adoption. She opined based on the evidence before the court that it would be in minor's best interest to be adopted by the foster parents because of his attachment to those parents and because of questions about father's understanding of, and ability to meet, minor's medical needs.
The juvenile court noted that father had been "impeached with a number of inconsistencies." The court made the following factual findings. Mother and father had a dating relationship in early 2019. They cohabited for two to three months, and separated around April. After they separated father knew where mother lived and knew she was pregnant. Despite that knowledge, he provided no money, food, or support. He visited mother twice. At the second visit around June he told her he had rented a room and wanted her to move in with him. Mother told him he was crazy, and he thereafter did not try to visit her. Father learned about minor's birth from father's friend Roberto on the day minor was born. Despite that knowledge, father did not contact the Department until about a month later. Since then, father had done little to demonstrate the necessary commitment to parental responsibilities. He had seen minor only once during a video visit, and never asked for additional visitation. He made weekly phone calls to the foster mother, but the calls were only one to two minutes long. The court found the calls had "not been meaningful." And the court questioned whether father understood everything that was expressed to him during those short phone calls, noting that father was not aware of minor's eye issue despite having been informed of it by the foster mother. The court found it was apparent from father's testimony that he did not understand how to monitor minor's unique medical needs. The court determined father's promise to listen to doctors and follow instructions was inadequate because babies who are "medically fragile do not come with a set of instructions." The court questioned father's proposed reliance on his landlady and her sons for assistance. And finally, the court noted concerns about possible drug use by father because he testified that he had used methamphetamine once in 2019 despite also claiming that he had been sober for two years. The court found that father had not demonstrated he was a Kelsey S. presumed father, and concluded it was in minor's best interest to be adopted by the foster parents.
II. DISCUSSION
Father challenges the juvenile court's findings that he is not a presumed father under Kelsey S., and that it was in minor's best interest to be adopted by the foster parents.
A. THE JUVENILE COURT'S RULING ON PRESUMED FATHER STATUS
When a mother relinquishes a child for adoption, the standard necessary to free the minor for adoption varies based on the biological father's parental status. If he is merely a biological father, the juvenile court must "determine if it is in the best interest of the child that the biological father retain parental rights, or that an adoption of the child be allowed to proceed." (Fam. Code, § 7664, subd. (b).) A biological father has additional rights if he can establish presumed father status. Kelsey S. status is a nonstatutory presumed father status. A biological father can obtain that status if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise." (Kelsey S., supra, 1 Cal.4th at p. 849.) A Kelsey S. father's "federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Ibid.) The juvenile court has broad discretion to consider "all factors relevant to that determination" and must review father's conduct both before and after the minor's birth. And "father must demonstrate 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' " (Ibid.)
It is father's burden to establish presumed parent status, and we review the juvenile court's decision for substantial evidence. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.) Under that standard "we view all factual matters most favorably to the prevailing party and in support of the judgment, indulging all reasonable inferences and resolving all conflicts accordingly." (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 (Arthur M.).) Father's substantial evidence challenge to the presumed father aspect of the juvenile court's decision must show that undisputed facts establish his Kelsey S. status as a matter of law. (Cf. In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 [applying same standard when reviewing adverse finding on the beneficial parental relationship exception to adoption].)
The juvenile court made an adverse credibility determination about father's testimony, finding that he had been impeached both by internal inconsistencies within his own testimony and by the testimony of the foster mother. Under the facts as found by the trial court—which we find are supported by substantial evidence—father knew mother was pregnant and knew where she was for the entirety of her pregnancy. Yet father visited only twice and never provided mother any support. Of the multiple descriptions about how and when he learned about minor's birth, the juvenile court credited the timeline under which father learned mother was in the hospital the day minor was born. Despite that knowledge, there is no record (other than father's self-serving testimony) that father attempted to establish parentage until a month later when he contacted the Department. The foster mother testified she neither saw him at the hospital nor heard from hospital staff that he had attempted to see minor, which the juvenile court was entitled to credit over father's uncorroborated testimony that he went to "all the hospitals" to look for mother and minor. In the nearly 10 months between minor's birth and the contested hearing, father had made minimal efforts to demonstrate the necessary commitment to his parental responsibility. Father had never offered, much less provided, support of any kind to the foster parents. He had seen minor just one time, and did not request additional visitation. He made weekly phone calls to the foster mother, but they lasted just one or two minutes. And father's statements both during the phone calls and during his testimony at the hearing supported a finding that father did not fully understand the extent of minor's significant medical needs or what would be required of him if minor were placed in his care. Unlike the foster mother, who was able to identify specific things she would need to monitor regarding minor's medical needs (such as "how the light reflects on his pupils"), father vaguely stated he would "[t]ake care of him" when asked about how he would monitor minor's health. The trial court did not err in finding father failed to meet his burden to establish presumed father status under Kelsey S.
The overarching theme of father's briefing is that as a "Spanish only speaking person with no education and who is unable to read or write," his efforts were adequate to meet the Kelsey S. parent standard. He argues the "evidence showed [father] did all he could, within his control, to establish presumed parenthood." Though we agree that a juvenile court should not deny Kelsey S. status based entirely on a biological father's literacy or education, those factors are nonetheless relevant to the analysis. And contrary to father's contention, the evidence supported the juvenile court's finding that father had not done all he could, within his control, to establish Kelsey S. status. Father had just one visit with minor, and his weekly calls lasted only one or two minutes each. Father could control whether he asked for additional visits, which he never did. Father could control the length of the weekly phone calls by remaining engaged and asking questions about minor, but the foster mother did not believe father was paying complete attention during even those short calls. And father could control whether he offered support to the foster parents in the form of money, food, supplies, or toys, but never did.
Father argues any failure to support minor before he was born and immediately thereafter was mother's fault because she refused all contact with him and declined to identify him as minor's father. But even disregarding the entire prenatal period, the juvenile court's finding of inadequate efforts after minor was born is supported by substantial evidence, as we have already summarized.
Many of father's appellate arguments disregard our standard of review. He relies on his own testimony and focuses on facts favorable to his position, instead of evaluating the evidence in the light most favorable to the judgment against him. (See Arthur M., supra, 149 Cal.App.4th at p. 717 [appellate courts review factual matters and resolve all conflicts in favor of the judgment].) For example, father argues "there was a language barrier with the foster parents," citing a Department memorandum describing father's explanation for not having called the foster parents. But the same memo notes the social worker informed father that the foster mother spoke Spanish, a fact confirmed by the foster mother at the Kelsey S. hearing. Similarly, father relies on his testimony about minor's ailments to attempt to contradict the foster mother's testimony about statements father made to her suggesting he thought there were no long-term health consequences of in utero drug exposure. The juvenile court was presented with conflicting testimony by father and the foster mother, and found the foster mother more credible. We defer to the juvenile court's witness credibility determinations. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 349.)
Father states he is a "man who did as he was told, who followed directions," apparently seeking to excuse his failure to be more proactive about things such as asking for additional visits, offering support to the foster parents, or attending minor's medical appointments. But establishing Kelsey S. status requires efforts by the biological father that demonstrate a full commitment to parental responsibilities (Kelsey S., supra, 1 Cal.4th at p. 849), especially where a child has unique needs. As the juvenile court observed, babies who are "medically fragile do not come with a set of instructions."
Father points to efforts he made to prepare for taking custody of minor, including renting a room, obtaining access to baby furniture, and eliciting the help of his landlady's adult sons to provide transportation to medical appointments. Those efforts are all commendable. But in light of the other evidence we have discussed, they do not amount to grounds for reversal.
Father argues the juvenile court considered "irrelevant information" about how father had parented his older children. A juvenile court making a Kelsey S. determination may broadly consider "all factors relevant" to whether a father has demonstrated a full commitment to parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 849.) We find the argument puzzling because it was father's own counsel who initially elicited testimony about his older children. Nor does father explain why a father's parenting experience would have no relevance to parenting another child. And the juvenile court stated the information about father's older children was merely "potentially relevant" to the Kelsey S. determination, which demonstrates the court did not place any outsize importance on it.
Citing cases where appellate courts have affirmed a juvenile court's order denying Kelsey S. status, father suggests the juvenile court erred because his conduct here was better than that described in the other authorities. (E.g., Arthur M., supra, 149 Cal.App.4th 704.) That father was arguably more proactive than fathers who were also denied presumed parent status is ultimately irrelevant to whether he met his burden in the juvenile court under the facts of his case. He also cites a case where an appellate court affirmed a finding that the Kelsey S. standard had been met (Adoption of H.R. (2012) 205 Cal.App.4th 455, 457), but that authority is not helpful here because it arose in a different procedural posture. Father seeks to compare his case to In re D.A. (2012) 204 Cal.App.4th 811, where the appellate court reversed an order denying the biological father Kelsey S. status. But unlike this case, the father there sought a paternity test while mother was pregnant, "took mother to prenatal medical appointments," and actively and repeatedly requested visitation once the child was born. (In re D.A., at pp. 824-825.)
As the juvenile court's task is focused on the particular facts before it, on this record we find no error in denying father Kelsey S. presumed father status.
B. THE JUVENILE COURT'S RULING ON MINOR'S BEST INTEREST
Father argues it would be in minor's best interest for him to retain his parental rights. The juvenile court had to determine whether it was "in the best interest of the child that the biological father retain parental rights, or that an adoption of the child be allowed to proceed." (Fam. Code, § 7664, subd. (b).) In making that decision, the court could "consider all relevant evidence, including the efforts made by the biological father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child." (Ibid.) We review the juvenile court's best interest determination for abuse of discretion, and we review any factual findings underlying the decision for substantial evidence. (Adoption of A.S. (2012) 212 Cal.App.4th 188, 218.)
The foster parents were the only caregivers minor had ever known. They established a bonded attachment with minor, having taken care of him since he was a few days old. They were intimately familiar with his medical needs and took him to all medical appointments. Father made some efforts to obtain custody (such as calling the foster parents weekly, renting a room, and finding baby furniture), but he did not pursue additional visits with minor after the single visit and also did not appear to fully understand the extent and severity of minor's medical issues. Presented with these facts, the juvenile court acted within its discretion in allowing minor to remain with the caregivers to whom he was bonded, and avoiding the disruption that would accompany changing placement from the foster parents to father.
Father repeats unpersuasive arguments about the evidence which we have addressed in the preceding Kelsey S. discussion. He also attacks the juvenile court's decision as one "based on affluence and education." Nothing in the record supports that assertion. We find no abuse of discretion in deciding it was in minor's best interest to remain with the foster parents who, in contrast to father, had demonstrated an ability to meet minor's unique medical needs.
III. DISPOSITION
The order terminating father's parental rights and freeing minor for adoption is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Danner, J.