Opinion
B230829
12-01-2011
Adoption of L.C., a Minor. VISTA DEL MAR CHILD & FAMILY SERVICES et al., Plaintiffs and Respondents, v. RICKEY C., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. Law Office of Gradstein & Gorman, Jane A. Gorman and Seth A. Gorman, for Plaintiffs and Respondents Gwendolyn S. and Ivan S. Bonnie Hiler for Minor.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BN05409; BN05429; BT048761)
APPEAL from an order of the Superior Court of Los Angeles County, John L. Henning, Judge. Affirmed.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Law Office of Gradstein & Gorman, Jane A. Gorman and Seth A. Gorman, for Plaintiffs and Respondents Gwendolyn S. and Ivan S.
Bonnie Hiler for Minor.
Michael F. Kanne for Plaintiff and Respondent Vista Del Mar Child and Family Services.
A biological father seeking to block an adoption contends the trial court erred when it found that he failed to qualify as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) because he did everything that reasonably could be expected of him to assert his parental rights within the constraints of time and his own limited financial circumstances. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
L.C. was born on June 28, 2009. Her biological parents are Sandra G. (who is not a party to this appeal) and appellant Rickey C.
When Sandra gave birth to L.C. she told a hospital social worker she wanted to place the newborn for adoption. Sandra told the social workers that she was living in a drug rehabilitation facility, she had two sons who had been declared juvenile court dependents, and she did not want L.C. to be involved in the foster care system. She said L.C. was the product of an unreported rape and she could not identify the rapist. Sandra did not disclose to the agency that Rickey might be the baby's father.
No father is identified on L.C.'s birth certificate. Sandra gave the child a different last name than her own; the social workers did not ask Sandra why she did that.
Sandra selected respondents Ivan and Gwendolyn S. (the S.'s) from among several prospective adoptive parents presented by the agency. L.C. went home with the S.'s on July 1, 2009, and has lived with their family since that time. Sandra formally relinquished her parental rights on July 13, 2009.
On August 14, 2009 the agency filed a petition to determine the parental rights, if any, of Sandra's unknown rapist. That petition was granted and is not at issue here.
Rickey contacted the agency on August 18, 2009. He told social workers that Sandra told him that "he was—could be the father of her baby, who she . . . placed for adoption." After receiving Rickey's call, the agency sent Sandra a new "Declaration of Mother" (declaration) form to complete. She returned her new declaration to the agency in mid-September 2009. The agency did not hear from Rickey again.
On October 9, 2009, the agency filed the instant petition to determine Rickey's parental rights, and to determine the necessity of his consent under Family Code sections 7662 and 7664. The petition was served on Rickey on October 30, 2009. Rickey made his first court appearance on December 1, 2009. The court appointed counsel for Rickey and for L.C., ordered paternity testing and set a hearing in January 2010 to review the results of the paternity test.
Further undesignated statutory references are to the Family Code.
The paternity test revealed that Rickey is L.C.'s biological father. The S.'s filed a request to adopt L.C. on January 21, 2010 (Case No. BT048761). On January 27, 2010, Sandra and the S.'s were joined as parties to this action, and the court appointed counsel to represent Sandra. The court authorized monthly visits for Rickey with L.C.
In March 2010, the court ordered that an evaluation be conducted pursuant to Evidence Code section 730, and appointed Nancy Kaiser-Boyd, Ph.D. to conduct the independent evaluation. She was charged to evaluate bonding, attachment, disruption of attachments, whether adoption was in the child's best interest, physical custody and placement, visitation with Rickey during the proceedings and after adoption, and to evaluate how to appropriately introduce Rickey as L.C.'s biological father.
On September 29, 2010, Sandra filed a motion to revoke her consent to relinquishment. (§ 8700 et seq.) She claimed to have signed the consent under duress, that she lacked the mental capacity to consent, and that she had believed she had six months to change her mind. The next day Sandra requested that her motion to revoke consent be dismissed. The trial court granted that request.
The trial
Judy Goldman, adoptions social worker
Trial began on September 30, 2010. Judy Goldman, one of the agency's social workers who met with Sandra at the hospital after L.C.'s birth, testified first. Goldman testified that Sandra told the social workers she had been homeless and was now living in a rehabilitation facility. Sandra said she been raped, could not identify L.C.'s father and said it was not possible that the baby's father was anyone but the rapist. Sandra had no reservations about placing L.C. for adoption.
Rickey contacted the agency on August 18, 2009. He said Sandra had told him he was, or could be, the father of the baby she had placed for adoption, and he asked what he should do. Goldman told him he would need to get an attorney and take a paternity test. Because the agency had no prior knowledge of Rickey's existence before he called, Goldman told him the agency would need to speak with Sandra, who had never mentioned him, to discuss the possibility that he might be the baby's father. She told Rickey he could call or come in to talk to the agency; he said he would. The agency tried to contact Sandra to discuss Rickey, but was unable to reach her. Eventually Goldman spoke with Sandra who said Rickey "might be" L.C.'s father. The agency tried unsuccessfully to get Sandra to come in to discuss the issue of paternity. The agency sent a new declaration to Sandra to complete. She completed the form and returned her new declaration in mid-September 2009. The agency did not hear from Rickey again and had no further contact with him until he appeared in court in December 2009. Between June 30 and December 1, 2009, Rickey sent no money, clothes or supplies to the agency to help provide for L.C.'s care.
Goldman monitored Rickey's court-ordered visits with L.C. The visits went well, everyone behaved in an appropriate manner and the child did not appear to be stressed by the visits. Rickey C.
Rickey and Sandra met near the end of 2007, and began a sexual relationship within one to three months thereafter. Sandra was 31 years old; Rickey was 52. Rickey and Sandra never became romantically involved, nor did they live together. The sexual relationship continued for about 2 and a half to 3 years, during which Rickey and Sandra did not discuss birth control and engaged in unprotected sex.
Rickey heard from "neighborhood gossipers" and letters from Sandra, that Sandra was pregnant with Rickey's child two or three months before L.C. was born. Rickey's father died on March 25, 2009. Rickey took one or two trips to Alabama to see his father before he died. He returned to Alabama five days after his father died to prepare for the funeral service on April 4, 2009, but which Rickey did not attend because he was angry with his brother. Rickey met with Sandra at a motel in Long Beach at some point shortly before one of his trips to Alabama. Sandra told Rickey she was pregnant. Rickey "started talking to the baby and rubbing [Sandra] on her stomach," and laughing and playing with Sandra. He did not ask Sandra if the child was his "because [he] had heard it from so many people, that [he] didn't think it was necessary." He had "already accepted it" (i.e., "accepted the fact that . . . [he] would be a responsible parent"), and believed the child was his. Sandra said she had been raped but did not give him any more information about the rape, which she had not reported to the police. Sandra told Rickey that the baby "could possibly be [his] or the rapist's." Rickey "never believed" Sandra's "cock and bull story" that she had been raped; he "believed the child was [his] child," and told her "whatever it is, [he would] be the baby's dad." Rickey did not ask Sandra to marry him. Sandra loaned Rickey $300 so he could attend his father's funeral.
The timing of Rickey's father's death is significant; both Sandra and Rickey tied Rickey's knowledge of the pregnancy to the period just before his father's death.
Rickey and Sandra spoke on the phone while he was in Alabama preparing for the funeral. Rickey's testimony was inconsistent as to whether he had any further contact with Sandra before the baby was born. He testified that he had no contact with Sandra between the time he returned from Alabama in early April and the child's birth. He did not contact her because his father had died and he was concentrating on his father's death and a dispute with his brother over inheritance issues. Rickey also testified that he visited Sandra occasionally before the baby's birth, while she was living at the rehabilitation facility.
Rickey said he heard about the adoption from neighborhood gossip. Sandra also told Rickey she had placed the child for adoption when she called him a day or so after L.C.'s birth. She said she "gave the baby away." Rickey was "very angry" that Sandra "gave [his] daughter away" and "hung the phone up on her." Rickey saw Sandra in early July, about a week after L.C.'s birth, and over a week before she signed the papers relinquishing the baby for adoption. Sandra approached Rickey, who told her to "get away from [him.]" They talked in his car for about 15 minutes. He was angry and did not ask Sandra who had the child, and did not want to hear anything about the child's adoptive parents. Rickey did not suggest that he wanted to raise the child himself, or that he and Sandra could get the baby back and raise her together. He asked Sandra, "'"why would you give away your only daughter?"'" and told her to get out of his car. Rickey did not speak to Sandra again until he came to court in December 2009. Rickey spoke with some lawyers at his church about what he needed to do to obtain custody prior to being served with the petition in this action. They told him to file a paternity action. He never did.
Rickey never attended any medical visits with Sandra during her pregnancy, even though Sandra asked him to. He did not help her pay rent or provide her maternity clothes or supplies to help prepare for the child's birth. He did not provide financial assistance to Sandra to help support her during the pregnancy, although he did give her $20-$30 on some occasions when she asked him for money. He visited her after she moved into the rehabilitation facility, and sometimes brought her some free food he got from his church or another organization, and small sums of money. Rickey took no action prior to L.C.'s birth to establish the child's paternity, and did nothing to try to stop the adoption or to obtain custody of L.C. after she was born. Between June 28 and December 1, 2009 Rickey took no action to establish L.C.'s paternity, did not see or visit L.C., and did not provide money for her medical expenses or support or baby supplies or clothing during that period. He contacted the agency in August, after Sandra told him she had placed the baby through the agency, but hung up after he was told to retain an attorney. Rickey did not remember the agency telling him he needed a paternity test. He did not contact the agency again. Rickey did not try to contact an attorney until after he was served with the paperwork in this case.
At the time of trial, Rickey had visited with L.C. about seven times since January 2010. He did not take the child to any medical visits, but did give the S.'s $100 during some of those visits.
In 1992, Rickey stabbed his wife in the back; he was angry and hurt because his three-year-old son told him she had been unfaithful. He saw his wife in a car with another man, and chased her with a knife. Rickey's kids were with him at the time. Afterwards, he took his 13-year-old daughter and son home and tried to kill himself by injecting battery acid into his arm. Rickey pleaded guilty to a charge of assault with a deadly weapon. He was released from prison in 1996. Rickey acknowledged that he has some anger management problems.
Rickey's criminal record reveals two incidents of domestic violence—one was a misdemeanor and the other was the felony involving the stabbing of his former wife for which he received a seven year sentence in state prison.
Rickey has not seen his son since 1993, although they are now in contact on Facebook. He saw his daughter once since 1992 when he ran into her at a grocery store about five years before trial, and they have reestablished a relationship. Prior to his incarceration, Rickey smoked cocaine for about five years. He did not resume using drugs after he was released from prison. Rickey has not worked a "regular job" since 1992, but has done odd jobs as a handyman. In 2006 he began receiving S.S.I. for a partial disability caused by injuries he sustained in an explosion. He receives just under $850 per month from S.S.I. Rickey does not have health insurance. He lives in a one-bedroom apartment, for which he pays $600 per month in rent. He spends about $150 per month on food, and has nothing left over after paying for necessities. At the time of trial, Rickey was not yet able to work at a regular job, but expected that he would be able to do so. He had not looked for full-time work since 1996, but had applied for one job shortly before trial and was looking for work. He had not been able to work full-time "because of the economy." If L.C. were placed in his care, Rickey planned to support her financially by getting more handyman jobs. He was also looking for a job as a meat cutter, a profession for which he had trained in prison, and was going to school to "better himself." Rickey was 56 years old at the time of trial. He acknowledged that there were some obstacles to his ability to raise a child—his age, health and financial situation. But Rickey believed he was able properly to care and provide for a young child, and planned to do so with the help of family and friends.
Sandra G.
Sandra met Rickey in December 2007 and they began a sexual relationship soon thereafter. They never discussed birth control and had unprotected sex a number of times. At the time the relationship began, Sandra was living in platonic relationship with the father of her other two children. She became aware of her pregnancy in March or April of 2009, or about the sixth or seventh month. She testified that she had been raped by an unknown individual in October of 2008, but never reported the rape to anyone, including the police. Sandra was certain she knew she was pregnant and told Rickey about the pregnancy before his father died on March 25, 2009. Rickey told her the baby must be his. Sandra was reluctant to tell him about the October 2008 rape but, about two weeks later, told him she believed the pregnancy was the product of the rape. Sandra and Rickey saw one another frequently from the time he learned about the pregnancy to the time he went to Alabama for his father's funeral. Rickey was concerned, asked her to marry him and promised to help her even if the child was not his.
During this period Rickey bought some meals and supplies for Sandra, and she loaned him money to attend his father's funeral in Alabama. Rickey never paid for any prenatal care. He occasionally gave Sandra between $10 and $20. Sandra did not ask Rickey to go to any doctor's visits with her; he said he wanted to go, but couldn't because he had to work.
Sandra began to consider placing the child for adoption during the last few months of her pregnancy. She talked to Rickey and told him she wanted to give the baby up for adoption. She testified that "everybody knew that that's—he, you know, that's what I was thinking about doing. That's what I was gonna do." In the latter stages of her pregnancy, Sandra moved into a maternity home and then to a drug rehabilitation center, where she was living when L.C. was born. Rickey visited her once at the maternity home. They spoke on the phone a few times each week and he had her number. She testified both that Rickey visited her once while she was at the rehabilitation facility, and also that he came about once each week and brought her toiletries, money and food. While at the rehabilitation facility, Sandra told Rickey she was considering placing the baby for adoption. Rickey urged her to keep the child and said he would help her. Rickey did not offer to take the child into his home, and they did not discuss the possibility of him caring for the baby himself.
When L.C. was born, Sandra never told the hospital staff that it was possible that Rickey was the child's father; she only mentioned the rapist. Sandra called Rickey from the hospital right after L.C.'s birth as she was being moved into recovery, told him about the child's birth and asked him to come to the hospital. He declined. She did not feel that Rickey was being emotionally supportive. Rickey knew before the child was born that Sandra planned to place the baby for adoption. She also called him within a day of the child's birth to let him know she had placed the baby for adoption. She tried to talk to him again on July 4, 2009, but he shut her out.
Sandra also testified that she did not tell Rickey she had placed L.C. for adoption until three or four weeks after her birth, after she had signed the relinquishment papers. During that period, Rickey did not come to visit Sandra, and did not send any baby presents, diapers or supplies to help her care for the baby. Rickey did not bring any baby presents when he came to see Sandra during the three or four weeks after the baby's birth, and was not upset that the child was not with her. Sandra did not tell Rickey the name of the adoption agency until after she moved on August 9, 2009, which is when she also informed the agency that Rickey might be the child's father. Sandra delayed returning the new declaration the agency sent to her in August because Rickey "told [her] not to, and to just wait and let him look at the papers." Rickey never came to see her, and she eventually returned the form. She said Rickey "wasn't too happy about it," and "didn't think that [Sandra] knew what [she] was doing . . . ."
The S.'s
Between February and September 2010 the S.'s received $550 from Rickey and his family, of which $500 came directly from Rickey. Rickey also gave gifts to the S.'s and the baby. Rickey acted appropriately during his visits with L.C., which were pleasant. Rickey repeatedly told the S.'s they were taking good care of L.C., and a few weeks before trial said he would leave L.C. in their care even if he prevailed in this action.
The S.'s have two sons, both adopted. They wanted to adopt a third child, preferably a child of color because there was a greater need for adoptive homes for such children. They and their sons love L.C. and are all very close with her. The S.'s have a good relationship with Rickey. They believe it is important that an adopted child maintain a relationship with her birth parents if possible, and were open to a post-adoption contract to facilitate such relationships.
Dr. Nancy Kaser Boyd
Kaser Boyd performed a court-ordered evaluation of Rickey, Sandra, the S.'s and of L.C. She found Rickey candid and open in his interviews and that he had made every effort to rehabilitate.
Kaser Boyd concluded that L.C. was bonded to the S.'s and their sons, and would be at risk for reactive attachment disorder and serious bereavement issues if separated from them. She opined that it was in L.C. best interest to be adopted.
At the conclusion of trial, the trial court found that Rickey was L.C.'s biological father, but failed to meet the test for presumed fatherhood status under either the Family Code or Kelsey S. The court found that termination of Rickey's parental rights was in the child's best interest. (§ 7664.) Rickey appeals.
DISCUSSION
Rickey contends the trial court erred in finding he failed to qualify as L.C.'s presumed father under Kelsey S. because he has done everything that reasonably could be expected of him to assert his parental rights within the constraints of his financial circumstances.
Rickey does not take issue with the trial court's finding that he failed to satisfy the test to qualify as a statutorily presumed father. (§ 7611, subd. (d).)
Under the statutory scheme in California, only a presumed father whose parental rights have not been terminated has a statutory right to veto an adoption by withholding consent. (Kelsey S., supra, 1 Cal.4th at p. 825; see also §§ 7610-7612, 8604-8606.) Rickey concedes he does not qualify as a statutorily presumed father, acknowledging he never married Sandra, filed together with her a joint statement of paternity or received L.C. into his home and held her out as his own child. Nonetheless, citing Kelsey S., Rickey claims his right to due process and equal protection guarantees him the same right to decide whether to place a child for adoption as that afforded genetic mothers and statutorily presumed fathers, because he acted to assert those rights consistent with the circumstances of this case, including his own limited financial circumstances.
1. Governing law
In Kelsey S., supra, 1 Cal.4th 816, the California Supreme Court addressed a biological father's rights to veto an adoption in a case in which the father argued his ability to fulfill the statutory requirements of presumed fatherhood had been thwarted by the actions of third parties. Kelsey was born to unwed parents, Kari and Rickie. From the outset of her pregnancy, Rickie objected to Kari's decision to place the baby for adoption. Immediately after the child was born, Rickie sought and was granted temporary custody. Rickie was not able to take Kelsey into his home because the prospective adoptive parents refused to relinquish custody to him. The trial court modified its order, awarding custody to Kari and visitation for Rickie. At the subsequent adoption proceeding, the prospective adoptive parents argued that only the biological mother's consent was required to accomplish the adoption because Rickie had never received the child into his home and was not a statutorily presumed father.
Conceding that he did not satisfy the statutory requirements to be a presumed father, Rickie argued his failure to receive Kelsey into his home was due to the actions of Kari and the prospective adoptive parents. He asserted that California's statutory scheme violated the federal guarantee of equal protection because it discriminated between mothers and presumed fathers, who have unqualified rights to veto an adoption absent a finding of parental unfitness, and biological fathers, who enjoy a similar right only if they qualify as presumed fathers, a factor that, under California law, is inherently within the mother's control.
The Court agreed. It held that the statutory scheme which affords mothers and statutorily presumed fathers the right to block an adoption, but which affords no similar right to biological fathers, violated equal protection because it denied a biological father who had "promptly come[ ] forward and demonstrate[d] a full commitment to his parental responsibilities—emotional, financial, and otherwise," the same rights to block an adoption afforded to similarly situated presumed fathers. (Kelsey S., supra, 1 Cal.4th at p. 849.)
To satisfy Kelsey S., a child's biological father must show he promptly stepped forward to assume full parental responsibilities for his child's well-being, the child's mother or some third party thwarted his efforts to assume his parental responsibilities, and that he demonstrated a willingness to assume full custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.) To determine whether an individual biological father has "sufficiently and "timely" come forward to the extent necessary to convert his inchoate interest into a parental relationship worthy of constitutional equal protection, the Court instructed juvenile courts to consider "all factors relevant to that determination. The 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.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid.)
The Court elaborated on its analysis of the action necessary to qualify as a Kelsey S. father in Adoption of Michael H. (1995) 10 Cal.4th 1043 (Michael H.), clarifying that pre-birth action is essential to achieve the status of presumed father. In Michael H., Stephanie gave birth to Michael in February 1991. Mark, Michael's biological father, was not married to Stephanie. He learned of the pregnancy in July 1990. At that time Mark and Stephanie agreed to place the baby for adoption. Later in the pregnancy, Stephanie and Mark had a falling out and he decided to oppose the adoption and raise the child himself. Mark did not disclose his plan to Stephanie or to the prospective adoptive parents. When Michael was born, Mark sought custody, sent out birth announcements and bought baby supplies. (Id. at pp. 1048-1049.)
The Court found that Mark did not have a federal constitutional right to block the adoption, because he had not come forward in a sufficiently prompt manner during the pregnancy to demonstrate his commitment to his parental responsibilities. Of critical importance to the Court was that from July 1990, when he learned of the pregnancy, until the child was born seven months later, Mark acted as if the prospective adoptive parents, not he, would raise the child. He never fully demonstrated a commitment to his parental responsibility until after the child was born and he sought custody. Without a prompt assumption of his parental role during the pregnancy, the Court held that Mark's biological connection with his son never ripened into a constitutionally protected right. (Michael H., supra, 10 Cal.4th at p. 1060.)
"Michael H. leaves no doubt about what is required of the expectant father under Kelsey S.: '[A]n unwed father has no federal constitutional right to withhold consent to an at-birth, third party adoption . . . unless he shows that he promptly came forward and demonstrated as full a commitment to his parental responsibilities as the biological mother allowed and the circumstances permitted within a short time after he learned or reasonably should have learned that the biological mother was pregnant with his child.' [Citation.] The case also cautions that a father 'cannot compensate for his failure to [promptly come forward to offer support] by attempting to assume his parental responsibilities many months after learning of the pregnancy.' [Citation.]" (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 720, italics added.)
The biological father asserting Kelsey S. rights has the burden to establish the foundational facts on which those rights are predicated. Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.) We review a juvenile court's determination of presumed parentage status under the substantial evidence standard. (In re M.C. (2011) 195 Cal.App.4th 197, 213 (M.C.).) We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, viewing the record favorably to the trial court's order. (Ibid.) 2. Rickey is not a Kelsey S. father
Rickey concedes he is not a Kelsey S. father per se because he did not promptly come forward during the pregnancy to assume his parental responsibilities. He argues, however, that Sandra thwarted his ability to satisfy the Kelsey S. requirements by failing to apprise him of his paternity, and by misrepresenting that another man was L.C.'s genetic father. Under Kelsey S., Rickey argues, Sandra's actions cannot operate to deprive him of the same right to withhold consent to an adoption guaranteed to a presumed father.
There is some evidence that Sandra precluded Rickey from discovering that their long-term sexual relationship did result or might have resulted in the conception of a child. Both Sandra and Rickey testified that Sandra said the pregnancy resulted from a rape. Under some circumstances, a biological father's delayed assertion of parental rights may be excused. For example, in In re Julia U. (1998) 64 Cal.App.4th 532, a biological father seeking reunification services in a dependency proceeding argued he had a constitutional right to be treated as a Kelsey S. father. The court agreed, excusing the father's delay in coming forward because the mother falsely said another man was the biological father, and because the juvenile court and DCFS blocked the biological father's diligent attempts to visit the child. (Id. at pp. 541-542.) Unlike Julia U., this record contains substantial evidence that, in early spring 2009, Rickey knew or at least strongly believed the child was his. Rickey learned from neighborhood gossip that Sandra was pregnant with his child, and Sandra confirmed that the baby was his. At trial, Rickey was emphatic that he never believed that Sandra had been raped and always believed the child was his. Nevertheless, Rickey failed to act diligently and took no steps to assert his paternity rights until he was summoned to appear in this action 18 months later. (See In re Zacharia D. (1993) 6 Cal.4th 435, 452 (Zacharia D.) [biological father who waited until the 18-month review hearing in a dependency action to declare his paternity could not excuse his lack of diligence in assuming his parental responsibilities by arguing he lacked notice that his sexual relationship with the child's mother had resulted in a pregnancy when there was no evidence the mother ever hid herself, her pregnancy or their child from him].) There is no substantial evidence that Rickey was precluded from taking measures to assert his parental rights during Sandra's pregnancy. Post-birth action, by itself, is insufficient to qualify as a Kelsey S. father. (Michael H., supra, 10 Cal.4th at p. 1060.)
Rickey also argues that he was unable to demonstrate a full commitment to his parental responsibilities during or after Sandra's pregnancy because his financial circumstances rendered him unable to do so. The test for Kelsey S. status is whether Rickey "has done all that he could reasonably do under the circumstances" to demonstrate a full commitment to his parental responsibilities. (Kelsey S., supra, 1 Cal.4th at p. 850.) In applying this test, the family law court must consider the father's conduct both before and after the child's birth, which includes the period up to the family law court's determination. (Id. at p. 849.)
Considering all the evidence presented in this case on the issue of whether, under the circumstances, Rickey demonstrated a full commitment to his parental responsibilities, ample evidence supports the court's finding that he did not do so. Uncontradicted evidence shows that throughout the pregnancy and for months after L.C.'s birth, Rickey did little, if anything, to show a commitment to his parental responsibilities. When he learned Sandra was pregnant six months into the pregnancy, Rickey acknowledged his paternity. But he never paid or helped to pay for Sandra's prenatal expenses, nor did he go with her to the doctor, even though she told him about medical appointments and asked him to come. Rickey never opened his home to Sandra or made any effort to ensure that Sandra, homeless for most of her pregnancy, had a place to stay. And, apart from free groceries he got from his church and passed on to Sandra and an occasional small monetary gift, there is no evidence Rickey provided any groceries to Sandra, any funds for her to live on or any clothes or supplies for her or for the baby.
Sandra asked Rickey to accompany her to medical appointments, but he was not able to do so because he had to work. Rickey testified he has not worked a regular job since 1992, and has had only odd jobs as a handyman since then.
Rickey argues that the fast moving pace of this action coupled with his indigent status "precluded him from taking effective steps to assert his parental rights." He maintains that "[u]nless he has significant financial resources that include the ability to file a lawsuit claiming his paternal rights with the additional expense of DNA testing if the mother declines to say that he definitively is the father or merely suggests the possibility that a different man may be the father, the birth father will simply be unable to achieve the status of being a 'presumed father' and, thus, cannot assert his parental rights."
This argument fails. There is no justification here for reformation of the standards articulated by the Supreme Court in Kelsey S. and Michael M., and repeatedly reaffirmed (see e.g., Zacharia D., supra, 6 Cal.4th at pp. 451-452; In re Nicholas H. (2002) 28 Cal.4th 56, 63), to encompass Rickey's situation.
First, there is no merit to Rickey's contention that DNA testing is necessary to establish presumed father status, and that a man who cannot afford such testing is therefore precluded from establishing paternity. The Supreme and appellate courts consistently have found that presumed father status is not a function of biology. (See e.g., Zacharia D., supra, 6 Cal.4th at pp. 451-452; Nicholas H., supra, 28 Cal.4th at p. 63; M.C., supra, 195 Cal.App.4th at p. 212; In re Elijah V. (2005) 127 Cal.App.4th 576, 585-586 (Elijah V.); In re Raphael P. (2002) 97 Cal.App.4th 716, 735; cf., Estate of Sanders (1992) 2 Cal.App.4th 462, 477-478 [trial court lacked authority to order DNA test to determine paternity in probate action; DNA test is irrelevant to question of whether one satisfies statutory test for presumed fatherhood].) Nor does an action to establish ones status as a Kelsey S. father require that the petitioner first obtain a DNA test. (§§ 7630 et seq.)
We reject Rickey's contention that his poverty effectively precluded from establishing his paternity rights because he could not afford to retain counsel. One need not have an attorney in order to pursue an action to establish parental rights or to stop an adoption. A qualified individual may represent himself, proceed in forma pauperis and obtain a waiver of court fees. Rickey does not assert that he ever attempted to do so.
The trial court evaluated the credibility of the witnesses at trial, and found that Rickey's actions fell far short of showing he undertook the steps within his power and financial ability to demonstrate a "tremendous exceptional effort to be emotionally or financially supportive of [Sandra]." Rickey's assertion that his strained financial circumstances precluded him from taking the steps necessary to establish his status as a presumed father is unfounded. A limited earning capacity does not excuse one's failure to provide the support within one's limited means. (Cf. Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1012-1013.) Moreover, Rickey acknowledged that he could work and planned to do whatever was necessary to support L.C. if he obtained custody. Yet, Rickey chose not even to try to find regular or additional handyman work during Sandra's pregnancy to help provide for her or the baby. Even without any additional income, Rickey had sufficient means to give the S.'s about $100 per month to help support L.C. after this action was filed, but failed to provide any meaningful financial support to Sandra before the baby was born.
Second, there is no support for Rickey's assertion that, in addition to impediments caused by his indigency, "events moved so fast in this case . . . [that] he was effectively precluded from taking effective steps to assert his parental rights." Rickey learned that Sandra was pregnant by about the six month and believed from the outset that the child was his. Shortly after learning of the pregnancy, Rickey went to Alabama to see his terminally ill father and to plan the funeral. When he returned, he was preoccupied with his father's death and a fight with his brother over an inheritance and chose to have little contact with Sandra. He had her phone number and knew how to reach her. He made no effort to find Sandra or to talk to her after he returned to California, and there is no evidence she tried to evade him or prevent such contact before the baby was born.
Rickey also knew, before and within a day of L.C.'s birth, that Sandra planned to place the baby for adoption. When she called Rickey right after the baby was born and asked him to come to the hospital because she "kind of . . . want[ed] him there," he refused to come, leaving her to conclude he was not being emotionally supportive of her. Sandra tried to talk to Rickey in early July, before she signed the papers relinquishing the child for adoption. His response upon seeing her was to tell her to "get away from" him. He did not ask where the baby was, did not tell her he wanted to keep it himself and did not suggest that they get the baby back and raise her together. Sandra did not sign papers to relinquish L.C. for adoption for more than a week after that exchange. After the agency sent Sandra a new declaration to complete in light of Rickey's involvement, Rickey told her not to return the papers until he could review them which he never attempted to do. Rickey also consulted attorneys from his church. They advised him to file a paternity action. He never did.
In sum, Rickey had ample time but failed to take the prompt steps and legal action necessary to establish paternity or to seek custody of a child he always believed was his. A similar lack of diligent effort resulted in a father failing to achieve presumed father status in In re Elijah V., supra, 127 Cal.App.4th 576. There, the father failed to take any legal action to establish paternity or to seek custody, even though he knew there was a 90 percent probability he was the child's father. The court found he was not a Kelsey S. father. (Id. at p. 583.) Such inaction, here as in Elijah V., stands in stark contrast to the biological father's conduct in Michael H. There, the father, acting in pro. per., filed an action to establish paternity and to obtain custody even before he knew the child had been born. (Michael H., supra, 10 Cal.4th at p. 1066.)
To establish his status as a presumed father once he learned of the pregnancy, Rickey was required to promptly come forward to demonstrate his commitment to raising the child himself, and to support the mother, emotionally, financially and otherwise. In short, he must do "all he [can] reasonably do to act like a father." (Kelsey S., supra, 1 Cal.4th at p. 851.) Rickey demonstrated no comparable parental commitment during Sandra's pregnancy. His failure to do so was not a function of limited time or income. In addition to actions he could have taken before the child's birth, Rickey also could have come to the hospital to provide emotional support when Sandra asked him to, and/or voiced his objection to adoption. He could have taken steps after he learned from neighbors within a few days of the birth that the baby actually had been placed for adoption. Instead, apart from a single phone call to the agency, he chose to do nothing until he was required to appear in this case.
The trial court found there was "more than clear and convincing evidence" the L.C.'s best interest would be served by adoption. Rickey does not take issue with that conclusion. Substantial evidence supports the court's determination that Rickey is not a Kelsey S. father. The order terminating his parental rights must be affirmed.
We reject Rickey's unsupported assertion that the agency, which implicitly owed him a fiduciary duty, acted instead as his adversary and should have "stepped aside and acted in a neutral position." Points in a brief must be supported by argument and legal authority, both absent here. We "will not develop the appellants' arguments for them." (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) In any event, the record reflects that, once it learned of Rickey's possible parental interest, the agency proceeded promptly as it was required to do under the statutory scheme to determine the parties' rights. (See §§ 7662, 7664.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, Acting P. J.
CHANEY, J.