Filed 11/4/15 Unmodified opinion attached




                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                            DIVISION THREE


Adoption of T.K., a Minor.


H.B. et al.,

    Plaintiffs and Respondents,                        G050676

        v.                                             (Super. Ct. Nos. 13P001806 &
                                                        13AD000334)
D.N.,
                                                        ORDER DENYING REHEARING
    Defendant and Appellant;                            AND MODIFYING OPINION;
                                                        NO CHANGE IN JUDGMENT
K.K.,

    Defendant and Respondent.



                 The petition for rehearing is DENIED.
                 The opinion filed October 7, 2015, is hereby modified in the following
particulars:
                 1. On page 2 of the slip opinion, paragraph 2 of the Introduction, after the
sentence that reads “He even falsified his check book register to make it look like he had
sent money to her when he had not.” insert this footnote:
              “fnIn a petition for rehearing, D.N. disputes this depiction of his financial
efforts, arguing he made a number of payments toward K.K.’s expenses, including
putting money into a PayPal account and sending her checks. The problem is, the trial
court was very explicit in finding D.N. to be totally lacking in credibility in financial
matters. We quote from the trial court’s statement of decision: “Both [K.K.] and [D.N.]
testified at length and both attempted to provide some context to certain e-
communications, and during the trial, [D.N.] presented himself as being emotionally,
financially, and physically supportive, as allowed by [K.K.]. [D.N.] claimed that within
the limits and boundaries established by [K.K.], he was supportive, . . . . enough-so to
qualify as a presumed father. In general and after viewing the width and breadth of his
testimony, [D.N.] was not credible; in some instances, the court drew the inference his
testimony was intended more to mislead than to inform. In other instances, his testimony
was not truthful.” (Italics added.) The trial court’s finding means that D.N.’s own
testimony as to what he proffered is unreliable.”
              2. On page 5 of the slip opinion, in the first paragraph of Part B, omit the
sentence that currently reads: “On appeal D.N. makes no effort to show he paid for any
significant portion of those amounts despite having had a job since June 21.”
              3. On page 6 of the slip opinion, paragraph 4, the sentence that currently
reads “He would later send an email to them falsely claiming K.K. had used cocaine,
marijuana and alcohol during her pregnancy.” should be changed to read: “He would
later send an email to them claiming K.K. had used cocaine, marijuana and alcohol
during her pregnancy, claims which he later admitted to the trial court were exaggerated.”
              4. On page 9 of the slip opinion, in what is now footnote 4 (and what will
be after the above modification footnote 5) insert this sentence at the end of the footnote:
“As noted, the trial court specifically found D.N.’s financial evidence to be unreliable.”
              5. On page 15 of the slip opinion, first full paragraph, after the sentence
that is “Indeed, comparing the facts in Michael H. with those in H.R., it seems to us that

                                              2
in Michael H. there was a far stronger case for Kelsey S. fatherhood than in H.R., but the
father lost in that case.” insert this footnote:
              “fnMichael H. in fact reflects a strong rejection of a general “balancing”
approach that would excuse less than full financial and emotional commitments. In
Michael H., the trial court used a balancing approach to find that the father did qualify
under Kelsey S., and the appellate court used a balancing approach to uphold the trial
court’s conclusion. After all, the father had a lot of factors going for him. (Michael H.,
supra, 10 Cal.4th at pp. 1053-1054.) But the Supreme Court reversed based on a single
point showing less than full emotional commitment, namely the fact the father did not
come forward to support his fatherhood promptly enough. (Id. at p. 1060.) If the
Supreme Court in Michael H. had thought balancing was the appropriate approach, it
seems to us the judgment would have been affirmed rather than reversed.”
              These modifications do not affect the judgment.




                                                       BEDSWORTH, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




                                                   3
Filed 10/7/15 Unmodified opinion




                               CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


Adoption of T.K., a Minor.


H.B. et al.,

    Plaintiffs and Respondents,                      G050676

        v.                                           (Super. Ct. Nos. 13P001806 &
                                                      13AD000334)
D.N.,
                                                     OPINION
    Defendant and Appellant;

K.K.,

    Defendant and Respondent.



                Appeal from an order of the Superior Court of Orange County, James L.
Waltz, Judge. Affirmed.
                Marsha F. Lavine and Leslie A. Barry, under appointment by the Court of
Appeal, for Defendant and Appellant.
                Douglas R. Donnelly for Plaintiffs and Respondents H.B. et al.
              Michelle L. Jarvis, under appointment by the Court of Appeal, and Nicole
Williams for Defendant and Respondent K.K.
              No appearance for the Minor.
                                   I. INTRODUCTION
              In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), the Supreme
Court declared California’s statutory scheme precluding paternal rights for unwed fathers
unconstitutional in one – but only one – situation: If applied to “an unwed father who has
sufficiently and timely demonstrated a full commitment to his parental responsibilities.”
(Id. at pp. 849-850, italics added.) From the precise language used by the court in Kelsey
S. and as demonstrated by the holding in the later Supreme Court case of Adoption of
Michael H. (1995) 10 Cal.4th 1043 (Michael H.), there are at least two elements of “full
commitment”: (1) a demonstration of a willingness to financially support the child and
(2) a willingness – at least to the extent she makes possible – to emotionally support the
unwed mother during her pregnancy.
              Here, we uphold the trial court’s conclusion appellant D.N. did not
demonstrate the full commitment required to establish either the financial or emotional
elements. He did not pay any of the mother’s (K.K.’s) substantial pregnancy expenses.
He did not, as was within his power, save up for the future expenses of supporting a
child. In fact, he raided the small fund the couple initially established for child expenses
and never paid it back. He even falsified his check book register to make it look like he
had sent money to her when he had not. As to emotional support, during the pregnancy
D.N. engaged in a campaign of cyber-stalking K.K. that in some instances bordered on
the downright creepy (creepy is K.K.’s word, not ours, but it seems apt). He showed up
at a medical appointment he would not have known about unless he had hacked into her
cell phone. When she had an appointment with an attorney to discuss this adoption case,
D.N. just happened to email the attorney at the moment that appointment commenced.



                                              2
He also used contact information from K.K.’s cell phone to try to block the adoption by
the prospective adoptive parents, H.B. and C.B (the B.’s).
                  Given the lack of a full financial commitment and the negative emotional
effect of the cyber-stalking during pregnancy, we cannot say the trial court erred in
concluding D.N. does not qualify as a “Kelsey S. father.” Accordingly, we affirm the
order terminating D.N.’s parental rights and freeing T.K. for adoption by the B.’s.
                                                   II. FACTS
                  The record is large. At trial, the prospective adoptive parents, the B.’s,
pulled out all the stops in their effort to show that D.N. did not merit the status of a
“Kelsey S. father.” The record thus contains personal details about K.K. and D.N.’s
relationship leading up to and during the pregnancy the world does not need to know.
But with a little self-restraint, we can limit our rendition of the facts to the parts that are
relevant.     Because the trial court’s judgment may be upheld on the bases of D.N.’s less-
than-full commitment financially, plus the negative emotional effects of cyber-stalking,
our statement of facts will be largely confined to those two areas.1 And because conflicts
in the evidence are resolved in favor of the judgment, they are resolved here against D.N.
(See Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 (Arthur M.).)
A. Financial Side of the Relationship, Phase One:
Events Until the August 8, 2013 Final Breakup
                  K.K. and D.N. began dating in June 2012. By February or March 2013 the
relationship had progressed to the point that they decided to conceive a child together.
But at that time D.N. was unemployed and had no fixed address. It would be a distortion
to say he was “homeless,” but he certainly was gathering no moss. He was sleeping at


          1        The trial court added “sexual demands” made by D.N. on K.K. during the early stages of K.K.’s
pregnancy as a reason D.N. did not qualify as a Kelsey S. father. For the sake primarily of K.K.’s privacy, we see no
reason to perpetuate in a published opinion the salacious and embarrassing details supporting that finding. Suffice
to say that D.N.’s inadequate financial commitment and cyber-stalking are enough to support affirmance of the trial
court’s determination and this opinion should not be read as relying on more.


                                                         3
friends’ homes, his grandmother’s place in San Diego, and even sometimes in K.K.’s car
parked on the street.
              For her part, K.K. lived at her parents’ home and worked as a receptionist
in a dental office. With the mutual decision to become pregnant, K.K. immediately
prodded D.N. to get a job. Soon she lamented in a text message that he was doing
nothing to find employment.
              Their child, T.K., was born in late January 2014. Working back nine
months suggests the child was conceived in late April 2013. K.K. tested positive for
pregnancy on May 20, 2013. Sadly, the couple had broken up the day before.
              The news of the pregnancy prompted a reconciliation. Still, K.K. was none
too impressed with D.N.’s financial efforts up to that point. Among her first
communications to D.N. upon receiving news of the pregnancy was another request he
get a job.
              K.K. endeavored assiduously to instill in D.N. a sense of urgency about
employment. On May 29, she noted he was not making an effort to find work, and told
him to “grow up.” She expressed the same sentiment on June 5, and made the point he
had now had four months to get a job but had not. She stressed that his finding
employment was no luxury. In a message dated June 6, 2013, she said “I can’t afford
these bills already for my health,” and reiterated her disappointment D.N. was still not
working.
              Two weeks later, on June 21, 2013, he found a job, as a car salesman. The
couple set up a “baby fund” and D.N. made a $200 deposit. But he withdrew $160 of
that on August 1. There is nothing in the record or his briefing to indicate he ever
restored the money. Indeed, when he did not have $200 he said was necessary for a
dental cleaning in July, he borrowed the money from K.K. That money, like the baby
fund, would never be paid back.



                                             4
              D.N. finally found stable housing around July 1 in a room in a condo, but
K.K. had to lend him her credit card to pay for a credit check. Then he forgot to
terminate the credit-check company contract, so K.K. ended up paying $90 for credit
check charges before she took it upon herself to terminate the contract in December.
D.N. did not have the money to pay the deposit for his new digs so he had to borrow the
money for that, though not from K.K. And since he had been driving around with a
suspended drivers’ license since 2010, he had to borrow the money (though again, not
from K.K.) to restore his license.
B. General Financial Evidence After the August Breakup
              In addition to what we have already recounted about D.N.’s job efforts in
the period May 20 through June 21, the court heard evidence concerning D.N.’s
commitment to financial support in the period after August. K.K. testified her total
medical bills during the pregnancy amounted to around $26,000, and she spent about
$3,000 on clothes. On appeal D.N. makes no effort to show he paid for any significant
portion of those amounts despite having had a job since June 21. K.K. testified he never
paid for any maternity clothes or baby items. He did make phony entries in his check
register to support a claim he sent her checks totaling $900. The ruse was uncovered
when he refused to turn over his bank records prior to the trial, and those records had to
be subpoenaed for the trial. Had such checks been given to K.K., he had insufficient
funds in his account to cover them.
C. Cyber-Stalking After the August Breakup
              We will not attempt to figure out (and neither did the trial court) how many
times K.K. and D.N. broke up and reconciled in the period from the time they began
dating in June 2012 through August 8, 2013. We can say with certainty that they broke
up for the last time on August 8, 2013, at K.K.’s behest. D.N. professed shock at the
news.



                                             5
                 Though no longer an item with K.K., D.N. began (or maybe the better word
would be “continued”) cyber-spying on her.2 There would be evidence at trial via an
expert in cell phones that by knowing K.K.’s login and password for her iCloud phone,
D.N. was able to track her whereabouts.
                 In the period after August 8, despite K.K. changing her passwords no less
than five times, D.N. was able to know where she was much of the time. In October, for
example, when she traveled with a male friend to San Diego, D.N. called the friend, and
asked him to give the phone to K.K. so she could speak with him.
                 D.N. also used his access to K.K.’s phone to obtain the phone numbers of
the first couple who expressed an interest in adopting the child. He made it clear to them
he would oppose the adoption. An oppositional father was enough to cause them to lose
interest.
                 A second couple, the B.’s, were located as potential adoptive parents in
early October, 2013. D.N. used the contact information on K.K.’s phone to call them as
well and to reiterate his opposition to any adoption. He would later send an email to
them falsely claiming K.K. had used cocaine, marijuana and alcohol during her
pregnancy. The B.’s, however, were not intimidated and continued their efforts through
the trial.
                 The cyber-stalking “creeped out” K.K. Perhaps the worst of it occurred in
mid-December (and we note here that K.K. was about eight months pregnant at this
point) when she went to see an attorney and, while she was visiting that attorney, he got
an email from D.N. asking the attorney about representing him. We note that D.N.
already had an attorney at that time, so the trial judge was certainly not being
unreasonable in discounting D.N.’s later protestation that he was just emailing every


        2         Even before the breakup D.N. had established a pattern of such spying. Back on May 14 (before
the May 19 breakup), D.N. had figured out that K.K. bought someone else a drink, because he texted her about the
purchase on the theory that one drink doesn’t normally cost $23.


                                                        6
attorney in the county who did adoption work that particular day. A similar incident
occurred about two weeks later, when K.K. went to a medical appointment that only her
mother knew about. D.N. showed up in the parking lot.
              The final instance of cyber-stalking occurred just prior to the birth. K.K.
went to the hospital for an induced labor. The procedure had been kept secret but D.N.
still showed up. He had to be escorted out.
D. Evidence Favorable to D.N.
              At the trial, D.N. presented uncontradicted evidence he took a parenting
class. He read multiple books on parenting. He purchased baby supplies and set up a
nursery in the condominium where he lived. He obtained life and health insurance. He
made arrangements for a pediatrician and a day care provider. D.N. also testified that
while K.K. initially said he should give her money for the sake of her health, sometime
later she indicated that because third parties would be paying her medical bills, it wasn’t
necessary for him to pay them.
                                    III. DISCUSSION
A. Standard of Review
              An unwed father seeking Kelsey S. status has the burden of showing by a
preponderance of the evidence that he qualifies. This rule is inherent in Kelsey S. itself.
Kelsey S. is a constitutional law decision involving an as-applied challenge to a state
statutory scheme. And it is garden variety constitutional law that a party challenging the
constitutionality of a law as applied has the burden of “evincing facts” showing the
application is unconstitutional. (Associated Homebuilders v. City of Livermore (1961)
56 Cal.2d 847, 854; accord, Coffman Specialties, Inc. v. Department of Transporation
(2009) 176 Cal.App.4th 1135, 1145 [“On an as-applied challenge, the plaintiff must plead




                                              7
and prove the specific facts giving rise to the alleged constitutional violation.”].)3 The
burden was thus on D.N. to show enough facts to bring himself within Kelsey S. status,
not on K.K. or the B.’s to show he did not qualify.
B. Financial and Emotional Commitment
                  Kelsey S. said our state paternity law is unconstitutional “only to the extent
it is applied to an unwed father who has sufficiently and timely demonstrated a full
commitment to his parental responsibilities.” (Kelsey S., supra, 1 Cal.4th at pp. 849-850,
italics added.) The court went on to encapsulate its narrow holding in this oft-quoted
sentence: “If an unwed father promptly comes forward and demonstrates a full
commitment to his parental responsibilities – emotional, financial, and otherwise – his
federal constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.” (Id. at p. 849, italics added.)
                  Because Kelsey S. was a case in which the trial court merely applied an
existing statutory scheme which, by itself, barred any paternity claim by the unwed
father, the case did not go into detail as to whether the plaintiff father there actually
qualified under the full commitment test. What was meant by full financial and
emotional commitment remained inchoate.
                  Full emotional commitment was a feature of the Supreme Court’s next
foray into the area of an unwed father’s parental rights, Michael H. There, an unwed
father did everything he possibly could to demonstrate the full commitment contemplated


          3        At least two other appellate opinions, Adoption of H.R. (2012) 205 Cal.App.4th 455, 466 (H.R.)
and Adoption of O.M. (2008) 169 Cal.App.4th 672, 679 (O.M.), also declare the burden is on the unwed biological
father to show parental status under Kelsey S. but derive the rule a different way. H.R. simply cited O.M., which in
turn cited a dependency case, In re T.R. (2005) 132 Cal.App.4th 1202, 1210 (T.R.) and T.R. in turn cited In re
Spencer W. (1996) 48 Cal.App.4th 1647, 1653. Spencer W. was a case that centered on whether a man showed
enough facts to fit within a pre-existing statutory presumption of fatherhood based on his taking a child into his
home and holding the child out as his own (see Fam. Code, § 7611, subd. (d)). For this statutory burden-allocation
rule, Spencer W. cited Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th
501, 545 (Xebec). Xebec was a liability insurance coverage case involving the question of whether a settlement
between the insured and a third party established the insured’s damages for purposes of its insurance claim.
Regardless of the route taken, we are convinced this is the correct analytical destination.
                   All further undesignated statutory references are to the Family Code.


                                                          8
by the Kelsey S. court – except he did not promptly signal an intent to oppose an adoption
in the months just after he learned of the pregnancy. (Michael H., supra, at p. 1060.)
Rather, he went along with the mother’s plan to adopt the child out, but changed his mind
about five months later. While the trial and appellate courts thought he had done enough
to qualify for Kelsey S. father status (id. at pp. 1049-1050), the Supreme Court reversed.
The Michael H. court emphasized the father’s indifference in the “short time” after he
learned of the pregnancy. (Id. at p. 1060.)
                  In the case before us there is substantial evidence D.N. did not demonstrate
a “full” commitment to either the financial or emotional elements of the Kelsey S. test.
Financially, when K.K. and D.N. decided to have a child together by March 2013, D.N.
was transient and unemployed, yet he took what the trial court could reasonably have
considered a lackadaisical approach to job hunting until sometime in June, at which point
he did buckle down and find a job and a fixed abode. (See Adoption of A.S. (2012) 212
Cal.App.4th 188, 212 [noting father had, among other things, a “‘laissez faire attitude’”
toward support of mother “emotionally or financially”].) D.N. showed himself
financially irresponsible in his dealings with K.K. by borrowing money from her and
never paying it back (despite getting a job at a car dealership in June), failing to close his
credit check account and causing her to incur liability for it, and withdrawing the major
part of the $200 he put in the baby fund. And the false entries in his checkbook for
checks of $400 and $500 demonstrate not only that (1) he didn’t make payments to
support his child’s mother in her pregnancy, but (2) he wanted to create a false
impression of having made payments.4 Children do not get fed and clothed on false
checkbook entries, but courts may reasonably consider them in determining a putative
parent’s commitment.



         4        We recognize the imaginative allusion to the musical Chicago in D.N.’s reply brief, but if there
has been any “flim flam flummox[ing]” going on in this case, it is to be found in D.N.’s own checkbook entries.


                                                          9
                  As to the emotional element, we cannot ignore the negative effects of the
cyber-stalking. There is no question it added to the stress of K.K.’s pregnancy. It seems
the opposite of the emotional support required of would-be Kelsey S. fathers. (See Arthur
M., supra, 149 Cal.App.4th at p. 721 (Arthur M.) [name calling by father was “distinctly
unsupportive and emotionally degrading” and hence father did not measure up to “the
Kelsey S. and Michael. H. standards”].) We further noted that D.N.’s fixation on
knowing K.K.’s whereabouts often had no relationship with any well-being on the part of
his unborn child, but centered on efforts to “‘block adoption by others.’” (Kelsey S.,
supra, 1 Cal.4th at p. 849, quoting In re Racquel Marie X. (1990) 76 N.Y.2d 387, 408.)
All in all, we think the record replete with support for the trial court’s judgment.
C. The “Catch-22” Problem in Kelsey S. Jurisprudence
                  In her dissent in Michael H., Justice Kennard identified an inherent
practical problem facing all would-be Kelsey S. fathers: What if the efforts of the unwed
father to demonstrate his full commitment to parenthood themselves cause emotional
distress to the pregnant unwed mother?5 The problem was later dubbed a Catch-22 by
the court in Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 460 (Baby Boy W.),
and used by that court to excuse the would-be father’s “social media campaign.” The
father’s campaign involved taking his disagreement with the mother’s preference for
adoption to two public websites, Facebook and Change.Org.6 The Baby Boy W. court
said the campaign was “ill-conceived and poorly executed,” but nevertheless did not

           5        “The majority’s decision creates a dilemma for a biological father: if in the early stages of the
mother’s pregnancy he vigorously opposes the mother’s decision to relinquish their child for adoption, he runs the
risk of irreparably damaging his relationship with the mother and causing her emotional upset, quite the opposite of
the emotional support he must give under Kelsey S., supra, 1 Cal.4th 816. If, on the other hand, he initially
acquiesces in the mother’s decision to place the child for adoption, hoping to change her mind before the child is
born, he has, under the majority’s holding, forfeited his right to object later in the pregnancy to the child’s
adoption.” (Michael H., supra, 10 Cal.4th at pp. 1068-1069 (dis. opn. of Kennard, J.).)
           6       The campaign itself began after the trial court stayed the father’s proceedings. The father then
initiated an online petition campaign urging a change in California law on the Change.Org site and created a related
Facebook page “Help me Keep my Child From Being put up for Adoption,” which itself, said the appellate court
opened a “Pandora’s Box of hurtful commentary from uninvolved third parties.” (See Baby Boy W., supra, 232
Cal.App.4th at p. 461 and pp. 448-449.)


                                                         10
disqualify the father from Kelsey S. status. (Id. at p. 461.) Thus in affirming a finding
that an unwed father did qualify under Kelsey S., the Baby Boy W. court said the social
media campaign was only in response to the unwed mother’s attempt to terminate his
rights, and only then in the context of their becoming litigation adversaries. Thus, it
could not be counted against him in regard to the requirement he show emotional support
for the unwed mother.
              But unwed fathers have options even in the face of the Catch-22 arising out
of an unwed mother’s opposition to the father’s assertion of parental rights. If, as in the
case before us, it appears the unwed mother refuses, after a certain point, to take money
from the unwed father, the father can still open a dedicated bank account and make
regular deposits into it in order to demonstrate he is putting money away for the day
when, given the logic of his legal position, he must be prepared to assume all financial
responsibility for the child. (See Kelsey S., supra, 1 Cal.4th at p. 849 [stressing father
must be willing to assume “‘full custody of the child’”].) If an unwed father’s assertion
of full commitment to the responsibilities of parenthood means anything, it means he
must be prepared to support the child in his own home with his own resources (see
Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 735) or, if for some reason the child
were one day to live outside his home, by paying child support. As our Legislature
declared in section 4053, subdivision (a): “A parent’s first and principal obligation is to
support his or her minor children according to the parent’s circumstances and station in
life.” A bank account can, after all, be established unilaterally without interfering with
the unwed mother’s pregnancy and shows tangible proof that the prospective Kelsey S.
father really has put his money where his mouth is. In this case, however, D.N. did not
open any account on his own in order to make regular deposits into it. In fact, he
withdrew 80 percent of the meager joint account that was opened. Obviously the couple
had discussed the idea of a dedicated joint account, but D.N. must have rejected the idea
with regard to his own money.

                                             11
               Likewise, even if the prospective Kelsey S. father is not allowed contact
with the mother, he can show emotional support by doing no harm. If the mother does
not want any contact, so be it. But the father need not create gratuitous emotional
distress by calling the mother bad names (as in Arthur M.), or, as in the case before us,
indulging in a form of stalking. We would add here that D.N.’s cyber-stalking of K.K. in
this case is different from the social media campaign the trial court excused in Baby Boy
W. That campaign was launched after the litigation began. Here D.N. cyber-stalked
K.K. throughout her pregnancy. And we note the social media campaign in Baby Boy W.
was intermediated by public websites such as Facebook and Change.org. D.N.’s
campaign here was based on computer hacking stealthily directed at K.K.’s whereabouts.
It was directed spang at her, giving her the sense there was nowhere she could hide. This
is not just a failure of emotional support, this is the opposite of it.
D. The H.R. Case
               What we have already said is sufficient to establish there was no error here
on the trial court’s part in finding the D.N. did not qualify for Kelsey S. fatherhood. D.N.
did not demonstrate a full commitment on either the financial or emotional – and we use
this word deliberately – elements of Kelsey S. parenthood. These are requirements. As
we read Kelsey S. and Michael H., the prospective father must satisfy all the major
aspects of parenthood, including but not limited to, a full financial and emotional
commitment. The Supreme Court did not say “or otherwise.”
               We are aware, however, of one appellate decision that does not fit this
paradigm, H.R., supra, 205 Cal.App.4th 455, decided in 2012. H.R. is an outlier because
in that decision it was pretty obvious the would-be Kelsey S. father fell down on both the
financial and emotional elements of a full commitment to parenthood – and fell down
heavily on the emotional element, to the point of actual physical abuse. Yet the appellate
court still upheld a finding the father qualified under Kelsey S. Not surprisingly, D.N.
relies heavily on H.R. to argue that under the evidence here he is entitled, as a matter of

                                               12
law, to Kelsey S. father status based on such positive factors as his having obtained
insurance, read up on parenting, and bought baby supplies. We are not convinced.
              Here’s what happened in H.R.: In the early stages of the mother’s
pregnancy, the biological parents had a “rocky” relationship that included verbal and
physical abuse by the unwed father, as well as constant fights. (H.R., supra, 205
Cal.App.4th at p. 458.) On top of that, the trial court also found that the father had not
fully supported the mother financially, at least as “completely” as he might have done.
(Id. at p. 470.) But despite the fights, verbal and physical abuse, and less-than-full
financial support, the trial court found that the unwed father was indeed a Kelsey S.
father, citing other aspects of his behavior: He had participated in prenatal care,
attempted to marry the mother, lived with her a short time, and promptly sought a
determination of his paternity and DNA testing. (Id. at pp. 463-464.) But despite the
finding the father qualified under Kelsey S., the trial court terminated the father’s parental
rights because he was unfit. (Id. at p. 462.) Thus despite having been given Kelsey S.
status, father had to appeal.
              The appellate court found father qualified for Kelsey S. fatherhood and
reversed termination of his parenthood. The published part of the opinion does not
actually address the reason for reversal of the termination. The legal discussion portion
of H.R. consisted of parts I through IV, but the panel only published parts I and II,
leaving parts III and IV unpublished. Part I was a general discussion of Kelsey S. law,
leading up to the conclusion that if an unwed father qualifies under Kelsey S., then the
father must be shown to be statutorily unfit to have his parental rights terminated. (H.R.,
supra, 205 Cal.App.4th at p. 466, citing Kelsey S., supra, 1 Cal.4th at pp. 850-851.) Part
II was devoted entirely to refuting the prospective adoptive mother’s argument that the
father did not qualify under Kelsey S. (See H.R., supra, 205 Cal.App.4th at pp. 466-470.)
The part of the opinion reversing the judgment on the basis that the finding of unfitness



                                             13
was unsupported necessarily must have been in one of the unpublished parts III or IV of
the opinion.
                  It is part II of the H.R. opinion that D.N. relies on here. The core of that
part is a rejection of the idea that the father’s failure to fully support the mother either
emotionally or financially disqualified him from Kelsey S. status. Rather, the H.R. court
treated both the financial and emotional elements of Kelsey S. as but a single negative
factor7 to be weighed against the father, and balanced that single negative factor against a
number of positive factors – such as participating in prenatal care and taking legal action
– that militated in the father’s favor. In the process, the opinion euphemized the father’s
verbal and physical abuse as merely a “less than ideal relationship.”8
                  While we respect the H.R. court’s approach, we take a somewhat dimmer
view of verbal and physical abuse.9 Rather than turning the logical somersaults



          7         “L.R. [the prospective adoptive mother] relies on the court’s finding that father did not financially
or emotionally support mother during her pregnancy, and we agree that this is a factor we consider, but the cases
cited by her briefing are distinguishable. In In re Elijah V. (2005) 127 Cal.App.4th 576 (Elijah V.) a biological
father who, at most, sent $300 and diapers for a year was found not to be a Kelsey S. father. In Elijah V., however,
the father did not publically acknowledge his paternity, telling only his mother. When his paternity was questioned,
he lost interest. He never tried to parent the child and never claimed he was willing to take full custody. Instead, he
said he was in ‘no position’ to take the child and placing the child with him would be ‘abuse.’ (Elijah V., supra, 127
Cal.App.4th at p. 583.)” (H.R., supra, 205 Cal.App.4th at p. 470, italics added.)
          8         “In the instant case, the record is clear that father had limited financial resources and large
financial commitments – child support obligations, restitution and fines, and legal expenses. He testified he could
not obtain insurance for minor until she was in his house. He failed, however, to show he paid ‘pregnancy and birth
expenses commensurate with his ability to do.’ (Kelsey S., supra, 1 Cal.4th at p. 849.) During some portion of the
relevant time period, he had a job and he did not establish to the trial court’s satisfaction either that he helped to
support mother and minor or that he was completely unable to do so. Nonetheless, L.R. cites no case – and we have
found none – that denied a father, who promptly acknowledged paternity, accompanied mother to prenatal care,
visited his child, was willing and able to immediately take custody of his child, and took extensive legal action to
secure his parental rights and custody of his child, Kelsey S. status solely on the basis of his failure to provide
financial assistance to the mother and his less than ideal relationship with her.” (H.R., supra, 205 Cal.App.4th at p.
470, italics added.)
          9         For our purposes, we do not need to also disagree with the H.R. court’s forgiveness of the father’s
less-than-full financial commitment. That was a much closer call, because the father’s finances were already
strained by child support payments for two children of a previous marriage, the need to pay down a large ($18,000)
child support arrearage and a group of fines, restitution orders and legal expenses. (H.R., supra, 205 Cal.App.4th at
pp. 460, 470.) Perhaps, given such impecunious circumstances, the father really was doing all he could on the
financial end. A “full” financial commitment does not mean the last farthing. But there is no way we can agree
with the H.R. court’s excusing verbal and physical abuse of the mother.


                                                          14
necessary to distinguish H.R. from our case,10 we choose to disagree with it. The opinion
seems to us inconsistent with the text of Kelsey S., which requires a full commitment on
the financial, emotional “and otherwise” aspects of parenthood. We cannot find in
Kelsey S. any balancing test that would excuse financial or emotional deficiencies by
looking to other considerations.11
                  H.R. is also inconsistent with Supreme Court’s actual holding in Michael
H., supra, 10 Cal.4th 1043. There the unwed father was far better behaved toward the
unwed mother than the father in H.R. Indeed, comparing the facts in Michael H. with
those in H.R., it seems to us that in Michael H. there was a far stronger case for Kelsey S.
fatherhood than in H.R., but the father lost in that case. The H.R. court did not mention
Michael H. at all, much less attempt to distinguish it.12

          10        Two published opinions have distinguished H.R. so far. Adoption of A.S., supra, 212
Cal.App.4th 188 distinguished H.R. on the theory that in A.S. there were a variety of factors showing a lack of
commitment to parenthood, namely lack of financial support, lack of contact during pregnancy, “‘a complete
absence’” of communication to the unwed mother of the father’s willingness to support her emotionally or
financially and a “‘laissez faire attitude’” about “truly wanting to raise his child.” (Id. at p. 213.) More recently, in
Adoption of Emilio G. (2015) 235 Cal.App.4th 1133, 1148, the court distinguished H.R. on the ground that the
father’s “attendance at prenatal visits was perfunctory at best, his actions toward [the mother] were harmful, and he
did not diligently pursue his parental rights.” On the next page the Emilio G. court distinguished H.R. on the theory
the father “physically and emotionally abused [the mother], who did obtain a restraining order.” (Id. at p. 1149.)
We would point out, though, that in H.R. the father’s actions were, as in Emilio G., likewise harmful and also
involved physical and emotional abuse.
          11        Baby Boy W., supra, 232 Cal.App.4th 438 should not be read as countenancing a balancing-of-
factors approach to Kelsey S. fatherhood. The Baby Boy W. court affirmed a trial court’s determination an unwed
father qualified under Kelsey S. by painstakingly demonstrating that there was substantial evidence the father had
successfully run a gauntlet of seven “factors,” including financial and emotional commitment. (See id. at pp. 454-
461.) Significantly, the appellate court noted that his financial support was consistent with the father’s own “limited
financial resources.” (Id. at p. 457.) Where the father had most fallen down, as we have noted above, was an ill-
advised social media campaign to stop the adoption, but that certainly wasn’t at odds with a commitment to
fatherhood. (See id. at p. 461.) The most that can be wrung from Baby Boy W. is the appellate court’s quotation,
without disapproval, of a statement made by the trial judge that financial contribution during pregnancy is “‘not a
dispositive issue in any event.’” (Id. at p. 456.) We have looked, and we don’t find any “not a dispositive issue”
language in Kelsey S. itself. Moreover, the main point of the “not a dispositive issue” passage in Baby Boy W. was
not to excuse skipping out on paying pregnancy and birth-related expenses (id. at pp. 456-457) or excuse a less-than-
full financial commitment on the part of an unwed father, but to say the funds don’t necessarily have to come from
the father’s own employment, as distinct from other sources like, as in Baby Boy W., the father’s own parents. (Id.
at p. 457.) And to the degree that Baby Boy W. excused the father from paying for pregnancy and birth-related
expenses because the mother did not “require” them (see ibid.), the fact remains that there was evidence the father
did all he could, consistent with his limited means.
          12        In the H.R. court’s defense, one senses, in studying the opinion, that the court did not receive the
benefit of first drawer briefing from the parties. For example, it appears the prospective adoptive mother relied only
on two easily distinguishable cases, In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.) and Elijah V., supra,


                                                          15
                  Finally, the H.R. opinion is inconsistent with this court’s decision in Arthur
M., which made a point of saying that name calling by the father was “distinctly
unsupportive and emotionally degrading.” (Arthur M., supra, 149 Cal.App.4th at p. 721.)
None of those decisions used a balancing of factors approach to excuse what Kelsey S.
clearly said was a minimum requirement to show the unconstitutionality of our state’s
paternity statutes as applied to a given unwed father.
                  In fine, we think the balancing of factors begins only after it is determined
the father fully committed to emotional and financial support. We think the trial court
got it right, and we find nothing in the law to support a reversal.
                                              IV. DISPOSITION
                  The order is affirmed.


                                                                BEDSWORTH, J.
WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.

127 Cal.App.4th 576 (Elijah V.). Charlotte D. was a case where an unwed father was allowed to receive the child
into his home, but expressly waived his parental rights when a guardianship was established. Moreover, his conduct
toward the child when they were living at home was bad, described by our high court as behaving “inappropriately
and even cruelly” to the child. (Id. at p. 1149.) Elijah V. was a case where the unwed father’s omissions were
numerous: He only told one person he was the child’s father, he never publicly acknowledged the child as his own,
he became uninterested when his paternity was questioned, he never was willing to take full custody and he even
said placing the child with him would constitute “‘abuse.’” (Id. at p. 583.) The H.R. court could not base an
opinion on those two cases, and may not have been given others. (See H.R., supra, 205 Cal.App.4th at pp. 469-470)
                   Obviously, distinguishing Charlotte D. and Elijah V. did not establish, by itself, that the father in
H.R. met the requirements of Kelsey S. It only showed that, at most, the unwed father in H.R. wasn’t as unqualified
as the fathers in Charlotte D. and Elijah V. The tough task would have been to show that the father in H.R. was
more qualified than the father in Michael H., but the H.R. court didn’t attempt that.
                   It is also possible the H.R. court simply didn’t think the Michael H. decision was applicable at all
because in Michael H. the father’s main area of dereliction centered on his early acquiescence to adoption rather
than actual verbal and physical abuse. That said, we cannot see how initial acquiescence to adoption can be said to
be disqualifying when verbal and physical abuse isn’t.


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