Adoption of Emilio G. ( 2015 )

Filed 3/17/15: pub. order 4/10/15 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Adoption of EMILIO G., a Minor.
OSCAR G., et al.
Plaintiffs and Respondents,
v. A141319
ANDREW L.,
(San Francisco County
Defendant and Appellant. Super. Ct. No. FAD-13-022788)
INTRODUCTION
Andrew L. (Andrew) is the biological father of Emilio G. who was born in July
2013. Katherine O. (Katherine) is Emilio’s biological mother. Andrew and Katherine
never married. Katherine became pregnant with Emilio a few months after she and
Andrew began dating in August 2012. Their relationship was not smooth. By April
2013, Andrew and Katherine had broken up, with Andrew confirming the break up by
text message to Katherine.
Late in her pregnancy, Katherine moved forward with a plan to arrange for
Emilio’s adoption. She sought to have Emilio adopted by petitioners Oscar and Tisha G.
(the G.’s) in San Francisco. The G.’s filed a petition to terminate the parental rights of
Andrew. After a two-day trial, the court found that although Andrew was Emilio’s
biological father, he had not established that he was Emilio’s presumed father within the
meaning of Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), with the attendant
right to withhold his consent to Emilio’s adoption by the G.’s. Having made the finding
that Andrew was not a Kelsey S. father, the court then considered whether it would be in
Emilio’s best interests to terminate Andrew’s parental rights. The court concluded it
would be. Andrew now appeals. We conclude that substantial evidence supports the
court’s finding that Andrew is not a Kelsey S. father, and that the court did not abuse its
discretion in terminating Andrew’s parental rights. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Emilio was born in July 2013 in Los Angeles, California. His biological father is
Andrew L.; his biological mother is Katherine O.1
Andrew and Katherine’s dating relationship began in early August 2012.
Katherine became pregnant in October 2012.2 Even before Katherine became pregnant,
she was aware that Andrew could be violent and unpredictable. In September 2012, he
yelled at and pushed Katherine’s mother.3 Around that same time, Andrew pled guilty to
possession of metal knuckles and trespassing and was put on probation.
After Katherine became pregnant, several incidents occurred that confirmed her
belief that Andrew could be violent and unpredictable. During an argument in mid-
October, Andrew pushed Katherine against the door to his bedroom and into the hallway,
where she fell down. Katherine felt scared. No one had ever pushed her before. When,
as a result of this incident, Andrew lost his housing, he told Katherine that this was all her
1
The trial court made detailed findings in its statement of decision, and explicitly
noted that “[i]n making these findings, the court finds the testimony of Katherine []
credible, and the testimony of Andrew [] not credible, to the extent that their testimony
conflicts.” The trial court elaborated with examples, which we will discuss below.
Therefore, our summary of the facts adopts Katherine’s version of an event where
Andrew’s version differs from hers.
2
Katherine went to a clinic and got official confirmation of her pregnancy on
November 29, 2012. She was not surprised since it was obvious to her in October that
she was pregnant.
3
Katherine’s mother testified that she observed Andrew to be a controlling person,
and very aggressive and dominating toward her daughter. Katherine’s mother had never
known her daughter to be scared until she met Andrew.
fault and then kicked a dent into one of the doors of her car. Afterwards, he “took over”
Katherine’s car. This was a great hardship to Katherine and her mother and sister, who
depended on the car for school, work, and dropping off children at day care. Until
February 2013, when he stopped using Katherine’s car, Andrew lived in Katherine’s car
off and on.4 Katherine continued to make $260 monthly car payments and pay her
insurance premiums during this period that he had control of her car, and Andrew did not
reimburse her.
In November 2012, Andrew and Katherine went shopping for a “promise ring.”
Andrew’s credit was denied at the jewelry store because of $400 in prior unpaid jewelry
purchases for another woman, so Katherine put the ring on her own credit card. Shortly
thereafter, on November 22, 2012, Andrew asked Katherine to marry him. She found the
proposal, which took place in front of an arcade, embarrassing, but hesitantly said yes.
She did not tell anyone at first, and ultimately only told three people.
A serious incident between Katherine and Andrew occurred on November 29,
2012. Katherine and Andrew had an argument sitting in her parked car. The argument
got violent, and when Katherine (who was pregnant) tried to leave the car, Andrew, as
she put it, “reached to my arm and he pulled me from my shirt, to the point that my bra
and my shirt ripped.” She tried to take the keys out of the ignition, and in the ensuing
struggle Andrew scratched her arm with the car key. Andrew, who had been drinking
beer, drove away with Katherine still in the car. When they got to a red light, Katherine
tried to leave the car again. Her first reaction was to try to get away from Andrew
because she already knew that when he got mad he “gets very violent” and “really
aggressive.” Andrew pulled her back, then turned illegally on a red light and hit another
car. Andrew demanded that Katherine switch seats and take responsibility for the
accident. He was on probation, did not have a driver’s license, had been drinking, and
4
At trial, Andrew admitted that he had lied in his deposition when he denied being
homeless and living in Katherine’s car.
was scheduled to go back to jail the following day to serve the rest of a sentence.
Although she resisted, ultimately Katherine agreed to switch places.
At the trial on the petition to terminate Andrew’s parental rights, Peggy Gonzales,
who witnessed the incident, corroborated Katherine’s account. She testified that she
could hear Andrew yelling and screaming at Katherine, even though the car windows
were rolled up, and saw him hitting Katherine. Gonzales was ready to get out of her
truck and tell him to stop when Andrew took off in the car. She then saw Andrew hit a
car and switch seats with Katherine. Gonzales waited at the scene and told police that
Andrew had been driving, not Katherine, and that Andrew and Katherine had been
fighting in the car before the accident. Another percipient witness testified at the trial
that he saw the collision and saw Andrew make Katherine switch places and sit in the
driver’s seat.5
Katherine felt scared after the accident, and upset that Andrew had wrecked her
car. She wanted to go home and rest because she had to work later that night. She did
not consider asking for a restraining order at that time “[b]ecause I was afraid of his
reaction if he were to find out I did something against him. . . .”6
Andrew also tried to isolate Katherine from her friends. He told them to stay
away from her and pressured Katherine to deactivate her Facebook and Instagram
accounts. During an argument in late November or early December, Andrew took
Katherine’s iPhone away from her and cracked the screen, telling her this was a
consequence for not doing what he told her to do. Andrew then held onto Katherine’s
phone and told her to wait in the car while he visited his mother at her place of work.
After a while, Katherine got out of the car to use the bathroom, and left a note as to her
5
At trial, Andrew denied that he asked Katherine to change places with him. The
trial court, however, expressly found that Andrew’s testimony was not credible to the
extent it conflicted with Katherine’s.
6
Katherine saw Andrew smoke marijuana “every day.” He told her he smoked
because it relieved his aggressiveness. Katherine bought marijuana for Andrew in
October or November because he didn’t have money and she wanted to “save myself
from arguments and some problems” and “save myself from having to deal with him.”
whereabouts. By the time she got back to the car, Andrew had broken her phone in half,
claiming he hadn’t seen her note. He told her that he thought she had left him, and he
broke the phone as a way of hurting her.
At this point, Katherine started walking away, intending to walk the two blocks to
her place of work and get a ride home from there. Andrew walked behind her and kept
saying “[y]ou’re not leaving. You’re going to stay with me.” Andrew then took
Katherine's eyeglasses, which she needed in order to see. Andrew told her “[l]et’s see
how far you can get without your glasses. Let’s see how you can get home now, since
you can’t see.” Although Katherine kept asking him to give her the eyeglasses, he
refused. She relented (“[s]o I have to give in”), and ultimately went home with him for
the night. He did not return her glasses until the next day.
Eventually Andrew bought Katherine a prepaid phone so she could not hide from
him or have an excuse not to be in touch with him. Katherine testified that it was a “way
of having me on check.” Andrew continued to use the phone incident as a cautionary
threat: “if I didn’t listen to him, he always remembers, ‘See what happened with your
phone for not listening? You want something else happening?’ ”
Andrew denied breaking Katherine’s phone. He testified that her phone was
“weird, because I dropped it in water. . . . And subsequently, two days later, I dropped
mine in a soda, so—and I said, My bad, like when I get more money like I will get you
that.” This supposedly happened when he was driving her car. The trial court did not
believe that Andrew did not break the telephone.
Andrew would also park in front of the drive-through window at Katherine’s
workplace (a fast food restaurant) and watch her during her shift to see who she was with
and what she was doing.
Katherine, who had two children already, began to consider adoption in early
January 2013, and began to initiate a breakup in February. Katherine did not believe she
could depend on Andrew during her pregnancy, financially or otherwise. Katherine first
raised the subject of adoption with Andrew in the middle of February. When she did so,
he became aggressive and upset and refused to discuss it. When Katherine brought the
subject of adoption up again in March, Andrew again became aggressive and refused to
acknowledge the possibility of adoption or that their relationship was at an end. In April,
Andrew showed up at the restaurant where Katherine worked, and when she told him to
leave, Andrew challenged the assistant manager to a fight. A week later, Katherine met
with an adoption social worker and told her that she wanted to place the child for
adoption.
On April 30, 2013, Andrew texted Katherine that he was breaking up with her
because, as he testified at trial, “she was very ungrateful and unappreciative.”
On May 14, 2013, Katherine served Andrew with an application for a domestic
violence restraining order.7 The request was based on four incidents. 8 One was the
November 29, 2012, argument in the car we have already described. Another occurred
on April 18, 2013, when Andrew told Katherine over the phone “ ‘if we don’t see each
other, I’ll go looking for each one of your friends, and I’ll get rid of them.’ ” Katherine
also described an incident in April when Andrew threatened Katherine’s manager with a
fight and an incident in which Andrew pushed Katherine’s mother.
The application for a restraining order was heard on May 23, 2013. At the
hearing, Katherine testified regarding these incidents, which Andrew then denied. The
court found Katherine credible and concluded that Andrew had made a threat against
Katherine and committed domestic violence against her. The court issued a restraining
order as to Katherine, to last for three months. The court also told Andrew that he was
not prevented from contacting Katherine’s mother, and if he wished to be present at the
birth, he could petition the court for permission to be present. Andrew took neither of
these actions.
7
A couple of weeks earlier, Katherine had attempted to obtain a temporary
restraining order against Andrew on an ex parte application without notice. That request
was denied, and the court set a hearing for May 23, 2013, to consider the request.
8
The trial court took judicial notice of the records related to this application,
including the transcript of the hearing on Katherine’s request for a restraining order.
Andrew’s involvement in Katherine’s medical care was minimal. Only once, on
November 29, 2012, when Katherine learned she was pregnant, did Andrew actually
attend a doctor’s visit. He was also present when Katherine had an ultrasound in early
January 2013. However, when he went to doctor’s appointments in February, he stayed
for only 10 minutes in the waiting room. He never went in with Katherine and met her
doctor. This was also the case for all of Katherine’s remaining visits until the restraining
order was issued, which precluded Andrew from being with Katherine.
Throughout her pregnancy, Katherine worked 32 hours per week. She was
“desperate” for money and would not have refused any support from Andrew. During
the first trimester of Katherine’s pregnancy, Andrew was not working,9 and he did not
give Katherine any money for expenses related to the pregnancy. In December 2012,
when Andrew was released from jail after serving a sentence for his plea to possession of
metal knuckles and trespassing, Katherine asked him to get a job. She was concerned
that he did not have a place to stay and was still using her car. Andrew did not get a job
for several months and continued to live in her car. During this period, he would drive
her car from place to place, or sleep throughout the day. She bought him food and
sometimes sneaked food out of her mother’s house for him. Sometimes she would sneak
Andrew into her mother’s house so he could shower. Andrew never gave Katherine any
money to give to her mother for rent or food.
Andrew started working in February 2013, but gave Katherine no financial support
in the second trimester. In Katherine’s third trimester, Andrew gave her two cashier’s
checks, one for $20 and one for $10. He paid $40 for some medicine she needed, and
bought her some pants, a maternity belt, cream, a small pack of sanitary pads, as well as
two small packs of diapers for her youngest daughter. Katherine estimated that these
items were worth around $100. He also brought her a bib, a onesie, and newborn diapers.
9
Andrew had been employed at Taco Bell, but on October 15, 2012, he was fired
for harassing other employees and for insubordination.
A few times he brought her cookies, an ice cream, and bags of chips. He brought flowers
to her work in April for Easter and in May on Mother’s Day.
After Andrew broke up with Katherine by text message, they had no
communication with the exception of the flowers on Mother’s Day, until Andrew was
served with Katherine’s petition for the restraining order on May 14, 2013. After the
court issued the restraining order, Andrew provided no further financial support to
Katherine and had no contact with her.
On May 23, 2013, Andrew was served with formal notice of the upcoming
adoption in a document entitled “Notice of Alleged Paternity.” On July 2, 2013, before
Emilio was born, Andrew filed an action for custody in Los Angeles. He also filed a
notice of paternity. The Los Angeles County Superior Court denied Andrew’s request
because it did not have jurisdiction over an unborn child.
Emilio was born in July 2013. Three days after his birth, Katherine relinquished
him to the adoption agency, and he was then placed with the G.’s. That same day, the
G.’s filed an agency adoption request, and in Los Angeles County, Andrew filed an
application for custody and visitation. On July 24, 2013, the G.’s filed a petition to
terminate Andrew’s parental rights in San Francisco County Superior Court. On July 25,
2013, the Los Angeles County Superior Court denied Andrew’s custody application and
stayed the matter pending the outcome of the adoption case.
Between the time of Emilio’s birth and January 7, 2014, Andrew saw Emilio
twice. The G.’s never denied his requests to visit Emilio. His sole support for the child
was formula that he obtained from a governmental assistance program and some rice
cereal. The formula was useful, but the baby was not yet eating solid food.
The trial on the petition to terminate Andrew’s parental rights was held on January
7 and 8, 2014. The court issued a detailed statement of decision and, as noted above,
found Katherine’s testimony credible and Andrew’s not credible where their testimony
was in conflict.
The trial court found that Andrew had failed to establish that his commitment to
fatherhood was sufficient to establish him as a Kelsey S. father. Specifically, the trial
court found that before the child’s birth, although Andrew acknowledged the child was
his, “he failed to promptly assume or attempt to assume his parental responsibilities as
fully as the mother allowed and his circumstances permitted. [¶] . . . Financially, he did
not contribute his share of the expenses commensurate with his ability to do so. While
[Katherine] worked 32 hours a week during her pregnancy, [Andrew] did not work for
quite some time during the pregnancy, and did not present any evidence why he did not
seek employment. [¶] . . . [Andrew] used [Katherine] to supply him with food and a car
in which he slept and which he used as a means to monitor her whereabouts, causing her
to nearly lose her job. [¶] . . . The small amount of money he gave her left her to bear the
entire financial responsibility of the pregnancy. [¶] . . . [Andrew] did even less to support
[Katherine] emotionally during her pregnancy than he did to support her financially
during that period of time. He was emotionally abusive of her, and she was terrified of
him during the pregnancy. She waited for a break when he went back to jail as a relief
from the emotional abuse she was suffering. [¶] . . . [Andrew] took her car away for
several months, without regard to her needs, and he broke her phone, and replaced it with
one over which he exerted control. [¶] . . . [Andrew] committed domestic violence
against [Katherine], causing slight injury to her. [¶] . . . [Andrew] attempted to make
[Katherine] take the blame and responsibility in an auto accident which he caused after
using alcohol and while she was a passenger. He failed to take responsibility for the
accident he caused. [¶] . . . [Andrew] claimed that he went with [Katherine] to prenatal
visits, but [Katherine’s] testimony was more credible than [Andrew’s] when she testified
that [Andrew] made only cameo appearances by staying for 10 minutes at the doctor’s
visits and then rushing off to his job.”
The trial court also found that Andrew’s actions after Emilio’s birth were not
sufficient to establish that he should receive rights as a Kelsey S. parent: “[Andrew]
claimed to have provided financial support for the child, but the only evidence he offered
was that he purchased baby food on public assistance that he stocked up in his own home
after the birth and was never given to the baby except in token amounts. [¶] . . .
[Andrew] made excuses for only visiting with the child two times in the child’s entire
five months of life, but the evidence showed that he was never refused a visit by [the
G.’s] . . . [¶] [Andrew’s] legal actions in Los Angeles to seek custody of the child were
part of a continuation of harassment and emotional abuse of [Katherine], in that he took
actions such as requesting mediation in a case which he knew the Los Angeles court had
stayed jurisdiction, and scheduling hearings at times when he knew [Katherine] was in
labor or about to be in labor.” Andrew also “claimed that he had tried to set up a savings
account for the child, but under cross-examination admitted that he did not.”
The trial court evaluated the credibility of the witnesses, finding Katherine
credible and Andrew not credible where their testimony differed. Further, the trial court
explicitly found certain instances where Andrew was not credible: when he denied he
had a problem with alcohol, when he denied that he was inebriated at San Francisco
Airport on November 16, 2013, two days before the last pre-trial hearing, despite the fact
that there was credible evidence that he was in fact inebriated;10 and when he claimed that
he had tried to set up a savings account for the child, but admitted on cross-examination
he had not.
The court also concluded that Andrew had not carried his burden of proof that
blocking the adoption was in Emilio’s best interest.
On February 25, 2014, a judgment terminating Andrew’s parental rights was
entered. This timely appeal followed.
DISCUSSION
A. Andrew’s Kelsey S. Status
Andrew argues that the trial court erred in denying him Kelsey S. status. We
disagree.
10
On his way to a visit with Emilio and a court appearance, Andrew ordered seven
22-ounce beers at San Francisco Airport which he drank over the course of about five
hours. He spent almost $70.00 This was actually the money he had budgeted towards a
motel room that night. At trial he admitted in response to questioning that “[l]ooking at it
now” he “could have” used the money he spent on the beer to give to the G.’s to provide
something for the baby.
As Emilio’s unmarried biological father, Andrew could not intervene in his
adoption unless he qualified as Emilio’s presumed father either statutorily under Family
Code sections 7610-7612, 860411 or non-statutorily under paternal rights established by
Kelsey S., supra, 1 Cal.4th 816. There is no dispute that Andrew does not have statutory
presumed father status. Therefore, he may only intervene in the adoption if he can meet
his burden to show that he qualifies as a Kelsey S. father.
In Kelsey S., our Supreme Court held that a biological father, who is not married to
the child’s mother and “has no statutory right to block a third party adoption by
withholding consent may nevertheless have a constitutional right to do so under the due
process and equal protection clauses of the Fourteenth Amendment and thereby to
preserve his opportunity to develop a parental relationship with his child.’ ” (Adoption of
Michael H. (1995) 10 Cal.4th 1043, 1052 (Michael H.).) Therefore, “ ‘[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 paternal relationship absent a showing of his
unfitness as a parent.’ [Citation.] . . . ‘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 the circumstances permit.’ [Citation.]” (Adoption of
Arthur M. (2007) 149 Cal.App.4th 704, 719-720.) The commitment the father shows
must be as full a commitment to his parental responsibilities as the biological mother
allowed and the circumstances permitted “within a short time after he discovered or
reasonably should have discovered that the biological mother was pregnant with his
child.” (Michael H., supra, at p. 1054.) The father must demonstrate “ ‘a willingness
himself to assume full custody of the child—not merely to block adoption by others.’ ”
(Kelsey S., supra, 1 Cal.4th at p. 849.)
Andrew had the burden as the biological parent to establish the facts to support his
claim for Kelsey S. rights. (Adoption of A.S. (2012) 212 Cal.App.4th 188, 209.) We
11
All further statutory references are to the Family Code, unless otherwise noted.
apply the substantial evidence test in our review of the trial court’s findings of facts as to
whether Andrew met his burden. (Arthur M., supra, 149 Cal.App.4th at p. 717.) To the
extent this issue is a mixed question of law and fact, we “exercise [our] independent
judgment in measuring [the] facts against [the applicable] legal standard.” (Id. at pp.
717-718.)
“When determining whether substantial evidence is present, we do not resolve
conflicts in the evidence, pass on the credibility of witnesses, or determine where the
preponderance of the evidence lies. [Citation.] We merely determine if there is any
substantial evidence, contradicted or not, which will support the conclusion of the trier of
fact. [Citation.] Substantial evidence is ‘reasonable, credible evidence of solid value
such that a reasonable trier of fact could make the findings challenged . . . .’ (In re Brian
M. (2000) 82 Cal.App.4th 1398, 1401.) The appellant must show the evidence is
insufficient to support the trial court’s findings.” (Adoption of Myah M. (2011) 201
Cal.App.4th 1518, 1539.) 12
Substantial evidence supports the trial court’s findings that Andrew did not meet
his burden of showing that he is a Kelsey S. parent. Not only was Andrew not
emotionally supportive of Katherine during her pregnancy, his actions were actually
harmful to her. During the November 29, 2012, incident in the parked car, Andrew
yelled at Katherine, grabbed her and tore her clothing. Katherine was scratched in the
altercation. In a number of troubling ways, Andrew attempted to control and isolate
Katherine: he broke her cell phone, took and withheld her eyeglasses, threatened her
shift manager at work, threatened her friends in an effort to keep them away from her and
pressured her to stop communicating with her friends by attempting to restrict her use of
social media. He threatened her with future consequences if she didn’t listen to him. He
damaged her car and blamed her for causing him to be kicked out of his apartment.
12
In his reply brief, Andrew contends that a case cited by Katherine, In re I.W.
(2009) 180 Cal.App.4th 1517, 1528, puts forward a version of the substantial evidence
standard of review that is incorrect. We need not address this issue, because we do not
rely on that case for our articulation of the standard of review.
Although it has been noted that Kelsey S. and its progeny do not require the
biological father to “love or dote on the mother, propose marriage to her, or be a
compatible mate,” it is required “that he provide care and support for the mother’s
physical and emotional health to the extent it affects the health and welfare of the child
she is carrying.” (Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 452 fn. 13
(Baby Boy W.) It hardly needs to be pointed out that Andrew’s actions were not the
actions of an emotionally supportive father. Substantial evidence supports the trial
court’s finding that Katherine suffered emotional abuse and domestic violence from
Andrew, which undermined his effort to establish his status as a Kelsey S. father.
Further, Andrew was, at best, a reluctant participant in Katherine’s prenatal care.
In the period of time before the domestic violence restraining order was issued, Andrew
met Katherine’s doctor only once, and was present at the ultrasound after Katherine’s
pregnancy was established. However, at every subsequent medical appointment, Andrew
either stayed in the waiting room for 10 minutes or was absent. Although Andrew
explained that he had to work during these appointments, Katherine testified that Andrew
knew about the appointments in advance and could have changed his work schedule.
Andrew was not present at the child’s birth or at the hospital after the baby was born,
although the Los Angeles Superior Court informed him at the time the restraining order
was issued that he could petition the court to make a showing that he was entitled to be
there.
With regard to financial support, Andrew gave Katherine no financial support
during the first trimester of her pregnancy. As described above, he was a financial drain
on Katherine. Further, after Andrew got into a car accident on November 29, 2012,
Katherine paid the $500 deductible on the insurance. Although Andrew repaid
Katherine in February or March 2013, this was not an expense Katherine should have
been required to shoulder at a time she was “desperate” for money.
A biological father’s responsibility to financially support the mother is a
responsibility that must be considered in light of what support the mother permitted the
father to render, and what support his circumstances allowed. (Arthur M., supra, 149
Cal.App.4th at pp. 719-720.) Andrew suggests that his minimal financial support of
Katherine must be considered in light of the fact that he was unemployed and
underemployed during her pregnancy. On the contrary, the circumstances that led to
Andrew’s failure to provide any financial support during the first trimester and providing
very little during the remaining two, were circumstances of Andrew’s own making. In
particular, Andrew was unemployed for a time as a result of his own actions in the
workplace that led to his termination, and, as the trial court found, he offered no evidence
as to why he did not seek employment immediately after he was terminated.
Andrew, on the other hand, argues that a number of actions he took during and
after the pregnancy support a finding that he was a Kelsey S. father. Although some of
these actions, such as attending a parenting class after Emilio was born, were
commendable, under the substantial evidence standard of review, we “affirm the order
even if there is other evidence supporting a contrary finding.” (Baby Boy W., supra, 232
Cal.App.4th at p. 453.)
Andrew further contends that what he characterizes as a “relentless” pursuit of his
parental rights is evidence of his commitment to fatherhood sufficient to have warranted
a Kelsey S. finding. The G.’s, on the other hand, point out that the trial court found that
Andrew’s “legal actions in Los Angeles to seek custody of the child were part of a
continuation of harassment and emotional abuse of [Katherine], in that he took actions
such as requesting mediation in a case which he knew the Los Angeles court had stayed
jurisdiction, and scheduled hearings at times when he knew [Katherine] was in labor or
about to be in labor.” We need not, however, determine whether Andrew’s actions were
harassment or an appropriate pursuit of his parental rights. As the Baby Boy W. court
observes, it is not enough to simply file and pursue a legal proceeding; the biological
father must establish an “unequivocal commitment to his parental responsibilities” both
before and after the child’s birth. (Baby Boy W., supra, 232 Cal.App.4th at p. 452.)
Here, the considerable evidence of Andrew’s emotional and physical mistreatment of
Katherine, his failure to participate in her medical care, and his lack of financial support
during the pregnancy, all establish that Andrew did not show this “unequivocal
commitment.” In addition, substantial evidence supported the trial court’s conclusion that
the situation did not change after Emilio was born and in the custody of the G.’s. At this
point, Andrew could no longer claim that Katherine or the domestic violence restraining
order were excuses. As of the time of the trial, Andrew had visited Emilio only twice
during the first five months of Emilio’s life, gave the G.’s some formula and rice cereal,
and claimed to have stocked up on baby food at his home.
Andrew also relies on a number of cases involving biological fathers who were
denied Kelsey S. status, and attempts to contrast his situation with theirs. Although they
are not identical to the matter before us, each underlines the ways in which a father,
including Andrew, can fail to attain this status and, rather than supporting Andrew’s
argument that the court erred in denying him Kelsey S. status, undercuts it.
In Adoption of O.M. (2008) 169 Cal.App.4th 672, the father failed to provide the
mother with material support during the pregnancy while he was incarcerated and, when
he was released, the mother avoided contact with him. The court held that these
impediments were either of the father’s own making, or played a small role in the father’s
actions. The court emphasized that the father was responsible for demonstrating his
commitment to fatherhood in these circumstances and had failed to do so. Although
Andrew points to his failure to find full employment and Katherine’s decision to seek a
restraining order as standing in the way of his efforts to attain Kelsey S. status, these
matters were within his own control, just as similar impediments were in the control of
the father in Adoption of O.M.
In another case Andrew cites, Adoption of A.S., supra, 212 Cal.App.4th 188, the
father, who was 16 years old, was unemployed and dependent on his mother for financial
support and therefore unable to provide financial support to the mother. The court did
not, however, look primarily to these facts in its Kelsey S. finding. Rather, the court
emphasized the “ ‘complete absence’ of evidence” that the father communicated to the
mother “his willingness to support her emotionally or financially, or his commitment to
raising his child,” as well as the fact that father had not made a “ ‘significant effort[]’ . . .
to ‘assume the mantle of responsibility for being a father.’ ” According to the court,
father’s “ ‘laissez faire attitude’ ” was “ ‘very unusual’ for a father who ‘really wants to
have his child and raise his child in his care.’ ” (Id. at p. 210.) As with Adoption of
O.M., this situation involves a different scenario than that before us. The basic point,
however, remains the same: a father must demonstrate early on his commitment to
parenthood. Andrew, like the father in Adoption of A.S., failed to do so.
Adoption of Myah M., supra, 201 Cal.App.4th 1518 involved parents who were
not “able or willing to take immediate custody” of their child two years after the
grandparents had been granted guardianship of the child. The father was denied Kelsey S.
status solely on that ground, his parental rights were terminated, and the adoption by the
grandparents was permitted to proceed. (Id. at p. 1540.) Here, the trial court relied on a
variety of factors in reaching its conclusion. Myah M., therefore, is factually inapposite,
and of no assistance to Andrew.
Andrew also relies on a case in which the court affirmed a Kelsey S. finding,
Adoption of H.R. (2012) 205 Cal.App.4th 455 (H.R.) and attempts to draw an analogy
between himself and the father in that case. In H.R., the trial court found father was a
Kelsey S. father for a variety of reasons. The father participated, as far as the mother
would allow, during prenatal care. He attempted to marry mother; their relationship was
terminated by mother, who then blocked father from receiving any information on the
yet-unborn minor. “Father almost immediately sought the court’s protection by filing an
action to determine paternity and by obtaining DNA testing. . . . [¶] Father tried to live
with mother and planned on marrying her. They moved together to a two-bedroom
apartment.” (Id. at p. 468.) Father furnished a room with a crib and changing table even
though the child lived with the mother. The evidence was uncontested that father
maintained contact with the child as often as permitted, and that he and the child had
actually bonded. (Ibid.) On these facts, the court found that there was substantial
evidence to support the trial judge’s conclusion that father met the standards of a Kelsey
S. father. Here, in contrast, Andrew did not pursue his parental responsibilities to the
extent the father in H.R. did. His attendance at prenatal visits was perfunctory at best, his
actions toward Katherine were harmful, and he did not diligently pursue his parental
rights.
The H.R. court also concluded that the alleged negative behavior of the father13 did
not prevent it from finding substantial evidence to support the trial court’s judgment. The
court pointed out that “[Father] never abandoned minor or waived his parental rights. He
had no current drug, alcohol, or criminal conduct. While the trial court found father was
controlling and domineering and viewed women as possessions, it made no factual
findings of any hint of intended violence toward minor, and no factual findings of any
actual violence toward mother. Tellingly, mother was unable to obtain a restraining
order. Further, there was no evidence of any inappropriate behavior toward minor.”
(H.R., supra, 205 Cal.App.4th at pp. 469-470.) Further, in H.R., the request for the
restraining order had been denied for insufficient evidence and the court apparently
disbelieved mother’s testimony. (Id. at p. 459.) The situation here is quite different.
There was considerable evidence that Andrew physically and emotionally abused
Katherine, who did obtain a restraining order.
In an effort to dismiss the evidence that he was not emotionally supportive of
Katherine, Andrew contends that Katherine “barely met her burden” when she obtained
the domestic violence restraining order and the incidents on which the restraining order
was based were “isolated.” In such a situation, Andrew’s remedy was to challenge the
order on those grounds, something he did not do.
13
For example, mother claimed father “engaged in angry outbursts, assaultive
conduct, and sexually inappropriate conduct with a teenager.” (H.R., supra, 205
Cal.App.4th at pp. 468-469.) The court was not persuaded that these actions undermined
the substantial evidence supporting the trial court’s finding regarding Kelsey S. status.
The alleged “sexually inappropriate conduct” was the subject of testimony by mother’s
teenage daughter, who testified that father “once came in the computer room to thank her
and kissed her neck; her response was ‘ewww.’ ” (Id. at p. 468.) The mother’s daughter
also testified in response to a question from the trial court that she would support
mother’s position no matter what, and that her testimony was solely to support mother.
The court found that the trial court did not rely on this evidence in its findings of fact;
moreover, it did not appear that the trial court even credited this testimony. (Id. at p.
469.)
In his reply brief, Andrew relies on Baby Boy W., supra, 232 Cal.App.4th 438, a
case in which the court found that substantial evidence supported the trial court’s Kelsey
S. finding based on numerous factors. Although Andrew contends that his behavior was
similar to that of the Baby Boy W. father, he is incorrect. In Baby Boy W., the court found
that substantial evidence supported the trial court’s Kelsey S. findings. Specifically, the
father promptly attempted to assume parental responsibilities, and was willing and able to
assume full custody of the child with the help of his family. The father moved across
country to San Diego a week after learning of the child’s birth and secured full time
employment within a month after that. (Id. at p. 449.) He “provided adequate financial
support commensurate with his ability to do so and with [mother’s] need.” (Id. at p. 456.)
It was undisputed that the father took prompt legal action to secure paternity. He also
offered sufficient emotional support to mother. (Id. at p. 461.) There was no evidence of
violence or physical abuse. The mother “acknowledged that [father] never hit her, never
threatened her, and never called her a bad name.” (Id. at p. 460, fn. 19.) At most, mother
testified that father yelled at her over the telephone when they argued about adoption.
(Ibid.) Taken together, the facts in Baby Boy W. are wholly unlike the case before us,
and led the trial court in that case to an entirely different conclusion that was supported
by substantial evidence.
Andrew suggests that because the court in Baby Boy W. mentioned that the father
unwittingly took certain actions that the mother found objectionable, Andrew’s own good
intentions in his actions toward Katherine should have been given some weight by the
trial court. This argument is not persuasive. Contrary to Andrew’s argument, the trial
court in Baby Boy W. affirmatively stated in its findings that it treated the “issue of
emotional support objectively.” (Baby Boy W., supra, 232 Cal.App.4th at p. 458.)
Further, the Baby Boy W. court did not announce a general rule that in considering a
father’s actions, a court should look solely to a father’s motivations and intentions, but
rather seemed to be observing that the father’s sincerity and level of maturity had some
bearing on the inferences the trial court drew about his actions. We will not disturb the
trial court’s findings here based on this argument.
B. Best Interests Finding
“Where a natural father does not have presumed father status under section 7611
or a constitutional right to block an adoption under Kelsey S., ‘ “the child can be adopted
without his consent, and his parental rights can be terminated, unless the court determines
it is in the child’s best interest for him to retain his parental rights. [Citation.]” ’ ”
(Adoption of A.S., supra, 212 Cal.App.4th at p. 215.)
Section 7664, subdivision (b) provides that if the biological father claims parental
rights, “the court shall determine if it is in the best interest of the child that the biological
father retain his parental rights, or that an adoption of the child be allowed to proceed.
The court, in making that determination, may 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.”
Section 7664, subdivision (c) provides that “If the court finds that it is in the best
interest of the child that the biological father should be allowed to retain his parental
rights, the court shall order that his consent is necessary for an adoption. If the court
finds that the man claiming parental rights is not the biological father, or that if he is the
biological father it is in the child’s best interest that an adoption be allowed to proceed,
the court shall order that the consent of that man is not required for an adoption. This
finding terminates all parental rights and responsibilities with respect to the child.”
It was Andrew’s burden to prove that Emilio’s best interest would be served by
permitting Andrew to retain his parental rights and not allow the adoption to proceed.
(Adoption of A.S., supra, 212 Cal.App.4th at p. 218.) “We must determine whether
substantial evidence supported the trial courts findings and whether it abused its
discretion in determining that it was in [the child’s] best interests to terminate appellant’s
parental rights and proceed with the adoption.” (Id. at p. 218.)
In reaching its decision that it was in Emilio’s best interest to terminate Andrew’s
parental rights and allow the adoption to proceed, the trial court found that the adoptive
parents “are loving parents with the capability to love and nurture Emilio and the ability
to provide him a healthy childhood.” The court relied on the observations of Dr.
Frederica Conrad, who “observed the interactions between the [G.’s.] and the child, and
testified that the child is becoming attached to both parents, and that to remove Emilio
from this loving couple would be harmful to Emilio.” The court found that “[i]f the child
were to be removed from the [G.’s], [Katherine] would seek custody of Emilio which
would lead to a custody dispute between the parents, who have a previous domestic
violence history and an uncomfortable relationship with each other, subjecting Emilio to
tremendous stress.” Finally, the court found that “[i]f Emilio stays in the home of the
[G.’s], he will have access to both biological mother and father, while remaining in the
care of two people who have demonstrated that they have the ability to care for and
nurture Emilio.”
Andrew does not appear to argue that these findings are not supported by
substantial evidence.14 Rather, he points to other evidence in the record of his suitability
as a parent and contends that the court erred in concluding he had failed to meet his
burden of showing that it would be in Emilio’s best interests for him to retain his parental
rights. He first asserts that he went to “extraordinary lengths” to obtain custody and
loved his son and wanted to be a father to him. He also argues that any disruption to
Emilio on moving him from the G.’s home could be avoided with a “smooth transition
plan,” and that one benefit of blocking the adoption would be the benefit to Emilio of
being raised by his biological father. Andrew acknowledges the history between himself
and Katherine but asserts that exposure to conflict could be minimized in the event he
and Katherine have a custody dispute. Finally, he argues that the trial court should not
have relied on the assertion of the G.’s that they would give both Katherine and Andrew
access to Emilio.
14
Andrew contends as an aside that the court was “premature” in stating that it
would give more “credence” to the testimony of the psychologist who observed Emilio
(Dr. Conrad) than that of the psychologist retained by Andrew (Dr. Singer) who did not
observe Emilio because the court made this comment before hearing the testimony of Dr.
Singer. He provides no authority that the court erred in making this observation. Further,
there is no evidence that the court did not fully consider the testimony of witnesses in
arriving at its conclusions.
We disagree that the trial court’s discretionary decision should be disturbed for
any of the reasons Andrew advances. With regard to his efforts to obtain custody, we
note that the steps Andrew took occurred fairly late in a pregnancy he knew about much
earlier. Of far more significance, however, is Andrew’s attempt to minimize the
conclusion of the G.’s expert witness, Dr. Conrad, an expert in attachment bonding and
co-parenting. Dr. Conrad observed signs of bonding and attachment between Emilio and
his adoptive parents, which she believed would continue. Dr. Conrad testified that the
trauma of a move from the G.’s to another caretaker could be minimized. However, two
important conditions under which that trauma could be minimized were not present
here—namely a similarity between the G.’s and Andrew and the sensitivity and empathic
response of Andrew to the child upon such a change. There is very little in the record to
support Andrew’s claim that he would provide the loving and supportive environment
from which he proposes to remove Emilio. Andrew’s history of emotional and physical
abuse of Katherine, his criminal behavior, and failure to support Katherine emotionally or
financially suggest the contrary would be the case. Similarly, Andrew dismisses the
possibility that there will be any difficulty between himself and Katherine over custody
of Emilio should the adoption not proceed. On this record, such a claim is untenable.
With regard to Andrew’s argument that it was in Emilio’s best interests to be
raised by his biological father, this is only one of many factors a court may consider in
making a discretionary decision regarding a child’s best interests. (See Adoption of A.S.,
supra, 212 Cal.App.4th at p. 218.) It is not, however, the only factor, and on this record
we cannot say that the trial court abused its discretion in giving it less weight than the
considerable evidence that the adoption would be in Emilio’s best interests and should be
allowed to proceed.
Finally, we need not decide whether the trial court was precluded from
considering the G.’s’ expressed willingness to allow both Katherine and Andrew access
to Emilio. Even if this factor was not one on which the court could rely, as Andrew
argues, the trial court’s decision was based on far more than this possibility.
In sum, the trial court court’s findings of facts are supported by substantial
evidence. We find no basis for concluding that the trial court abused its discretion in
reaching its decision.
C. Oscar G.’s Presumed Father Status
Andrew contends that the trial court improperly found that Emilio’s adoptive
father, Oscar G., qualified as his presumed father. The court’s statement of decision,
however, explicitly states that “deciding whether or not [Oscar G.] is Emilio’s presumed
father . . . is not necessary . . . .” Although the court went on to state that were it to be
called on to determine whether Andrew or Oscar were Emilio’s presumed father, Oscar
would be the appropriate choice, this observation carried no weight in the court’s ultimate
decisions. Accordingly, no error occurred.
DISPOSITION
The trial court’s order is affirmed. Respondents are awarded their costs on appeal.
_________________________
Miller, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
Filed 4/10/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
Adoption of EMILIO G., a Minor.
OSCAR G., et al.
Plaintiffs and Respondents,
v. A141319
ANDREW L.,
(San Francisco County
Defendant and Appellant. Super. Ct. No. FAD-13-022788)
BY THE COURT:
The opinion in the above-entitled matter filed on March 17, 2015, was not
certified for publication in the Official Reports. For good cause and pursuant to
California Rules of Court, rule 8.1105, it now appears that the opinion should be
published in the Official Reports, and it is so ordered.
Dated: _______________________ ________________________________
Kline, P.J.
Trial Court: Superior Court of San Francisco
Trial Judge: Hon. Julie Tang
Attorney for defendant and-appellant Valerie E. Sopher
P. O. Box 1254
El Cerrito, CA
By appointment of the Court of Appeal
under the First District Appellate
Project’s Independent Case System
Attorneys for plaintiffs and respondents Marc Gradstein
Jane A. Gorman
Seth F. Gorman
Law Office of Gradstein & Gorman
80 Stone Pine Road, Suite 101
Half Moon Bay, CA 94019
24