Filed 6/5/15 K.W. v. T.I. CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



K.W.,                                                               D066301

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. DN173720)

T.I.,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, David G.

Brown, Judge. Affirmed.

         K.W., in pro. per., for Plaintiff and Appellant.

         No appearance for Defendant and Respondent.

         Plaintiff K.W. (plaintiff) appeals from an order of the family court that dismissed

his petition to establish custody rights for D.T., the minor child of defendant T.I.

(defendant), based on plaintiff's claim of parentage. The family court granted the motion

by defendant to strike the petition, with prejudice, based on the showings made at the

hearing.
       Representing himself on appeal, plaintiff contends the petition was erroneously

dismissed based upon his previous efforts to establish his parentage and the alleged lack

of a fair hearing. At plaintiff's request, this court augmented the record to provide the

history of the prior proceedings. Defendant has not filed a brief.

       We have reviewed the record and conclude plaintiff's challenges to the dismissal

order are not well taken. The family court had an adequate basis in the evidence to

exercise its discretion in the manner it did. We affirm.

                                               I

                    CURRENT PETITION AND PREVIOUS ORDERS

       We set forth only those facts that are relevant to the issues on appeal. The record

shows that defendant gave birth to the minor child in 2006 and did not identify a father

on the birth certificate. Plaintiff's declaration states that at that time he was 16 years old

and he signed a paper giving up his parental rights. The parties were never married.

Defendant got married for a brief time to the child's stepfather, who considered adopting

the child, but did not follow through.

       According to a minute order of February 14, 2013, plaintiff's parental rights had

been terminated in December 2012 in connection with the adoption request. On

February 14, 2013, plaintiff brought a motion to set aside the termination of his parental

rights, and the court granted the motion and dismissed the pending adoption petition for

the child. The court advised plaintiff he would need to seek custody and visitation orders

in the family court. Plaintiff filed such a petition, also requesting appointment of minor's



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counsel, and obtained a hearing date in June 2013. The matter was continued to

August 27, 2013.

       After the August 27, 2013 hearing, the court issued findings and orders after

hearing to allow further proceedings on whether plaintiff was a presumed father under

Family Code1 section 7611, subdivision (d) (the Uniform Parentage Act). The court

ordered DNA testing of the child and set a trial for January 16, 2014, on presumed father

status under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Depending on the

outcome of that trial, the court would schedule further proceedings on remaining issues of

custody, visitation and support. The request for appointment of minor's counsel was

denied without prejudice.

       Plaintiff obtained an appointment for DNA testing but defendant did not cooperate

until shortly before the hearing. On January 15, 2014, plaintiff filed an answer on the

Kelsey S. presumed father issues, claiming he did not realize he had signed away his

parental rights when the child was born, and he believes his rights were reinstated in

2012. He attached DNA testing results for himself and the child, showing a 99 percent

plus probability that he is the biological father.

       At the January 16, 2014 trial, defendant was represented by counsel and plaintiff

represented himself. The court (Judge Brown) heard testimony from plaintiff, defendant,

and other witnesses, and received an agency report from family court services. The court

ruled that defendant was credible and that plaintiff had not demonstrated a willingness to



1      All further statutory references are to the Family Code.
                                               3
assume custody of the child and did not make a public acknowledgment of paternity, nor

assist with expenses. The court made findings that plaintiff "did not seek prompt legal

action to seek custody of the child and has demonstrated conduct showing he would be an

unfit parent." The motion to strike was granted and the petition was accordingly

dismissed with prejudice. Counsel for defendant was directed to prepare the findings and

order after hearing. This was not done until July 16, 2014.

       On March 12, 2014, in another case number, plaintiff sought to challenge Judge

Brown from conducting further proceedings, but the request was denied and the court

noted the current case had been dismissed with prejudice. This appeal was filed to

challenge the order dismissing this case.

                                               II

                                APPLICABLE STANDARDS

                                 A. Basic Rules of Review

       On appeal, the judgment of the trial court is presumed to be correct. (Denham v.

Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Accordingly, if the judgment is

correct on any theory, the appellate court will affirm it regardless of the trial court's

reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of

Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All intendments and presumptions are

made to support the judgment on matters as to which the record is silent. (Denham,

supra, at p. 564.) An plaintiff has the burden to provide an adequate record and

affirmatively show reversible error. (Ibid.)



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       It is well established that "[i]n propria persona litigants are entitled to the same,

but no greater, rights than represented litigants and are presumed to know the [procedural

and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) For any plaintiff,

"[a]ppellate briefs must provide argument and legal authority for the positions taken.

'When an plaintiff fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale

Homeowners Assn. (2009) 172 Cal.App.4th 857, 862; In re Marriage of Falcone & Fyke

(2008) 164 Cal.App.4th 814, 830.)

                        B. Arguments on Appeal; Statutory Criteria

       As best we can determine from the opening brief, plaintiff claims that he had fully

established his parental rights as of February 2013, but defendant did not cooperate.

However, the record does not support a finding that plaintiff was ever found to be a

presumed father before the subject hearing took place in January 2014. At that time, he

was given an opportunity to attempt to prove he was entitled to parental rights, but he

was unable to do so, after testimony from witnesses.

       Under section 7611, subdivision (d), there is a rebuttable presumption that a man

is the natural father of a child if he "receives the child into his [] home and openly holds

out the child as his [] natural child." For the rebuttable presumption to arise, plaintiff had

the burden of establishing by a preponderance of the evidence that both elements existed:

reception into his home, and his open and public acknowledgement of paternity. (In re

Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653 [foundational facts must be

established by preponderance of evidence, to obtain benefit of presumption].) As the

                                               5
trier of fact, the family court had to determine whether the foundational facts were

established by a preponderance of evidence. (Id. at p. 1653.)

       Under Kelsey S., supra, 1 Cal.4th 816, whether presumed father status can be

established under section 7611, subdivision (d), depends upon whether the applicant

promptly attempted to assume full parental responsibilities, and showed " 'a willingness

himself to assume full custody of the child—not merely to block adoption by others.' "

(Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054, 1051 ["to become a presumed

father, a man who has neither married nor attempted to marry his child's biological

mother must not only openly and publicly admit paternity, but must also physically bring

the child into his home," italics omitted]; 10 Witkin, Summary of Cal. Law (10th ed.

2005) Parent and Child, § 39, p. 98.) Plaintiff provided his declarations and answers

showing the trial court that he had signed away his parental rights when he was 16, and

he told the court he did not pay attention to what the form said and he was a "dumb

young teenager who didn't know any better."

       Be that as it may, we are not permitted to relitigate this case and plaintiff has not

brought forward any arguments or facts to show the order failed to meet the above legal

standards. Essentially, his opening brief claims that different evidence should have been

considered or provided. For example, he argues: "I was never allowed to see my son not

even when he was born she kicked me out the hospital and didn't put my name on the

birth certificate and cheated on me when we were together. That is why I requested a

DNA tests she is a gamest. . . . [Sic.] [¶] My subpoena witnesses he never considered

Social worker: Natasha Hood's testimony about [defendant] falsified evidence in the

                                              6
adoption case. [Sic.] I had to augment my case so I submitted new proof to support my

claim in what I'm saying. [¶] This couldn't be fair. My rights are being refused with no

grounds."

       According to the minute order and the formal order, the court took testimony from

plaintiff and defendant, as well as other witnesses, and it received and considered the

exhibits offered. Given the relevant statutory criteria and the record provided, we cannot

find there was any error or any abuse of discretion in the family court's dismissal of the

petition. We are not bound to develop plaintiff's argument for him, and "the absence of

cogent legal argument or citation to authority allows this court to treat the contentions as

waived." (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.) Even if

we liberally construe the opening brief and its contentions, we cannot rehear the evidence

and must instead presume that it supports the family court's determinations. (Denham,

supra, 2 Cal.3d at p. 564.) We affirm the dismissal of the petition.

                                      DISPOSITION

       The order striking and dismissing the petition is affirmed. Each party shall bear its

own costs.

                                                                   HUFFMAN, Acting P. J.

WE CONCUR:

                   O'ROURKE, J.

                         IRION, J.




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