Filed 2/26/13 In re J.M. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


In re J.M., a Person Coming Under the
Juvenile Court Law.

K.W.,
                                                                     A135155
         Plaintiff and Appellant,
v.                                                                   (San Mateo County
                                                                     Super. Ct. No. 81723)
SAN MATEO COUNTY HUMAN
SERVICES AGENCY,
         Defendant and Respondent.


         When J.M. (the minor) was born, her mother (Mother) was living with D.M. (D.),
who claimed the minor as his child. At age three months, the minor was detained by the
San Mateo County Human Services Agency (Agency) after being hospitalized with
injuries suggesting abuse. During subsequent proceedings, D. was designated the
minor‘s presumed father, but DNA testing demonstrated that K.W. (K.) was her
biological father. K. moved to assert a constitutional right to presumed father status
under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), but the juvenile court
denied the motion. We affirm.
                                               I. BACKGROUND
         The minor was the subject of a dependency petition under Welfare and Institutions
Code section 300, subdivisions (b) and (e), filed September 6, 2011. At the time of
filing, the minor was three months old. The petition alleged the minor had been admitted
to the hospital with symptoms, including seizures, brain hemorrhaging, and bone
fractures, that are telltale signs of physical abuse. The minor‘s ―sole caregivers,‖ her
Mother and D., ―provided an explanation for the injuries that is inconsistent with
accidental trauma.‖ Amended and second amended petitions were filed in January 2012
containing materially identical jurisdictional allegations.
       D. and Mother are not married, but D. lived with Mother prior to and after the
minor‘s birth, was present at the birth, and was listed as father on the birth certificate.
DNA testing, however, eventually identified K. as the minor‘s biological father.
       Notwithstanding the test results, D. continued to hold the minor out as his child,
while K. had never been a part of the minor‘s life. At a hearing in January 2012, the
parties stipulated to D.‘s designation as presumed father, subject to K.‘s later assertion of
parental rights. At the same hearing, the juvenile court sustained the allegations of the
second amended petition without contest and declared the minor a ward of the court. The
minor was continued in an out-of-home placement, but Mother and D. were granted
visitation and reunification services.
       In a motion filed a week later, K. sought to be named the minor‘s presumed father.
While recognizing D.‘s statutory qualification for presumed father status, K. argued he
was entitled to assert the constitutional rights of a diligent biological father under Kelsey
S., supra, 1 Cal.4th 816.
       At a March 2012 evidentiary hearing on K.‘s motion, Mother and K. gave very
different accounts of the events following the minor‘s conception. Mother testified she
was living with K. when she became pregnant with the minor in October 2010. As soon
as she learned of the pregnancy, she informed K., assuming the child was his. The two
began making plans for the baby, but K. moved to Los Angeles a week later. Although
he told Mother he would be back in a few weeks, he never returned. Mother, who felt
―abandoned,‖ attempted to telephone him many times, but ―he didn‘t answer or he would
hang up.‖ After leaving for Los Angeles, K. showed no interest in the pregnancy and
offered no financial support for Mother. K. returned to the Bay Area in January 2011.



                                               2
Mother hoped to resume their relationship, but K. was incarcerated in February.
Following K.‘s incarceration, Mother heard nothing more from him.
       Mother said she began a romantic relationship with D. in November 2010,
although the two had met and had sexual relations earlier. The relationship lasted for a
time, broke off, and then resumed shortly before the minor‘s birth. During the last month
of Mother‘s pregnancy, D. cared for both Mother and her older child, who was still a
toddler. D. was present at the minor‘s birth and executed a declaration of paternity.
Although he was aware of the possibility the minor was not his natural child, he and
Mother continued their relationship after the birth, planning to raise the minor together.
       According to Mother, K. made no attempt to contact her after his release from jail
in June 2011. Two months after the minor‘s birth, in August, Mother called K. from the
hospital to ask whether K. had a family history of seizures. Mother acknowledged
refusing to tell K. where the minor was and saying K. was not the minor‘s father, but she
denied telling K. the minor had died.
       K. testified his romantic relationship with Mother last about 18 months, ending in
January 2011. When he found out about the pregnancy the prior October, he was
―nervous, but enthused‖ and planned with Mother to create a family. Soon after, he went
to San Diego for two weeks of job training. During that time, they had frequent pleasant
telephone conversations. When the training was over, K. took a job in Oakland and lived
with his sister in Emeryville. While there, he tried to see Mother several times. She put
him off, claiming D. was the minor‘s father. She also moved around, making it difficult
for him to find her. When he finally saw her in January, he gave her a ―diaper bag full of
baby accessories,‖ as well as food. He admitted providing no other financial support.
       During his incarceration, K. often tried to contact Mother, but her telephone
number was blocked to collect calls. He did not write Mother care of her mother‘s
address because he understood her mother had moved. K. learned about the birth of the
minor soon after being released from jail in late June 2011 and tried to contact Mother,
but her telephone number had been changed. He admitted placing a post on Facebook



                                             3
asserting the minor was not his child, but he said he was ―heartbroken‖ that Mother was
excluding him from the minor‘s life.
       According to K., when Mother called him from the hospital in August, she told
him the minor was having seizures, but she never asked him about his family‘s medical
history. She refused to tell him which hospital, claiming he was not the father. Soon
after, Mother left him a message saying the minor had died and asked him not to contact
her again. It was not until December that he learned through the Agency the minor was
in foster care. When he contacted a social worker, he insisted he was the minor‘s father
and sought custody.
       D. also testified at the hearing. He explained he met Mother on the Internet in
October 2010 and they had sexual relations in November. He had no further contact with
her until May 2011. At that time, he moved in with Mother and her grandmother, caring
for Mother and her child and sharing his government assistance money. At that time,
prior to the minor‘s birth, he told others the minor was his child. He went with Mother to
the hospital for the birth and was listed as her father on the birth certificate at his own
insistence. Following the birth, he cared for the minor, continued to share his limited
income, and treated the minor as his own child, telling others she was his. This did not
change after he learned he was not her biological father, and D. hoped to continue to act
as her parent. He and Mother were engaged to be married.
       The juvenile court denied K.‘s motion, stating that his efforts to connect with the
minor ―were less than immediate.‖ Although the court believed the ―princip[al] obstacle‖
to K.‘s uniting with the minor was ―the obdurate attitude of the child‘s mother,‖ it found
K. also ―exhibited failures of his own and immaturity of his own that suggests to me that
on the three points set forth in [Kelsey S.] he has not demonstrated his present ability to
fulfill the role of presumed father.‖ Although the court declined to remove D. as
presumed father, it did order the Agency ―to initiate an investigation into the propriety of
[providing reunification] services‖ to K. K. was also granted visitation with the minor
pending the results of the investigation.



                                               4
       At the time the appellate record closed in this matter, April 2012, Vacaville police
were reported to be conducting a criminal investigation into the minor‘s injuries. The
investigators suspected D. of having caused the injuries, but they had reached no
conclusions. The record also contains two physician‘s reports contradicting the Agency‘s
allegations and stating the minor‘s injuries are not consistent with child abuse.
                                     II. DISCUSSION
       K. contends the juvenile court erred in failing to grant him presumed father status
under Kelsey S. and, alternatively, abused its discretion in failing to designate him the
presumed father on the basis of his biological paternity.
       The law of presumed fatherhood was explained in In re J.L (2008)
159 Cal.App.4th 1010 (J.L.):
       ―The Uniform Parentage Act (Fam. Code,[1] § 7600 et seq.) (Act) provides the
statutory framework by which California courts make paternity determinations.
[Citations.] Under this statutory scheme, California law distinguishes ‗alleged,‘
‗biological,‘ and ‗presumed‘ fathers. [Citation.] ‗A man who may be the father of a
child, but whose biological paternity has not been established, or, in the alternative, has
not achieved presumed father status, is an ―alleged‖ father. [Citation.]‘ [Citation.] ‗A
biological or natural father is one whose biological paternity has been established, but
who has not achieved presumed father status . . . .‘ [Citation.]
       ― ‗Presumed‘ fathers are accorded far greater parental rights than alleged or
biological fathers. [Citation.] Presumed father status is governed by section 7611, which
sets out several rebuttable presumptions under which a man may qualify for this status,
generally by marrying or attempting to marry the child‘s mother or by publicly
acknowledging paternity and receiving the child into his home. [Citations.] Biological
fatherhood does not, in and of itself, qualify a man for presumed father status under
section 7611. On the contrary, presumed father status is based on the familial
relationship between the man and child, rather than any biological connection. [Citation.]

       1
           All statutory references are to the Family Code.


                                              5
       ―Section 7611 also recognizes two other grounds for qualification as a presumed
father that are outside of the Act, [including execution of a declaration of paternity]. . . .
In addition, . . . an unmarried biological father may, under narrow circumstances, assert
constitutional paternity rights, even though he does not qualify under any of the
presumptions listed in section 7611. [Citations.]
       ―Occasionally the complicated pattern of human relations gives rise to more than
one legitimate claimant to presumed father status, and the juvenile court must resolve the
competing claims. As the Supreme Court explained . . . , ‗[a]lthough more than one
individual may fulfill the statutory criteria that give rise to a presumption of paternity,
―there can be only one presumed father.‖ [Citations.]‘ The procedure for reconciling
competing presumptions is stated in section 7612, which provides: ‗(a) . . . a
presumption under Section 7611 is a rebuttable presumption affecting the burden of proof
and may be rebutted in an appropriate action only by clear and convincing evidence. [¶]
(b) If two or more presumptions arise under Section 7611 which conflict with each other,
the presumption which on the facts is founded on the weightier considerations of policy
and logic controls.‘ ‖ (J.L., supra, 159 Cal.App.4th at pp. 1018–1019.)
       K., who concededly does not qualify for presumed father status under any of the
presumptions of section 7611, seeks to assert his constitutional paternity rights as an
unmarried biological parent under Kelsey S. Again as explained in J.L.:
       ―Kelsey S. was a challenge to the adoption of a newborn child of an unwed
mother, which was filed by the child‘s biological father within two days after the baby‘s
birth. [Citation.] In analyzing the biological father‘s rights, the Supreme Court began by
observing that the Act precludes an unwed biological father from achieving presumed
father status unless he is able to satisfy section 7611, subdivision (d) by taking the child
into his home and holding it out as his own. [Citation.] As a result of this statutory
structure, the mother of such a child can deny presumed father status to the biological
father by giving the baby up for adoption, thereby preventing the father from satisfying
subdivision (d). [Citation.] After extensive discussion, the court concluded that this
feature of the Act was irrational for two reasons. First, a good potential father could be


                                               6
denied parental rights by the unilateral decision of the mother, while an unfit mother
could have her rights terminated only by statutory procedures. Second, the mother could
deny ‗a model [biological] father‘ presumed father status while permitting another man
‗of dubious ability and intent‘ to achieve presumed father status merely by allowing him
to live with the child in her home for a brief period. [Citation.] Accordingly, the court
held that, notwithstanding section 7611, ‗[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 parental relationship absent a showing of his unfitness as a parent.‘
[Citation.]
       ―The court emphasized that its decision applied only in narrow circumstances,
when ‗an unwed father . . . has sufficiently and timely demonstrated a full commitment to
his parental responsibilities.‘ [Citation.] In deciding whether a particular biological
father qualifies, the court instructed juvenile courts to consider ‗all factors relevant to that
determination. The father‘s conduct both before and after the child‘s birth must be
considered. Once the father knows or reasonably should know of the pregnancy, he must
promptly attempt to assume his parental responsibilities as fully as the mother will allow
and his circumstances permit. In particular, the father must demonstrate ―a willingness
himself to assume full custody of the child—not merely to block adoption by others.‖
[Citation.] A court should also consider the father‘s public acknowledgement of
paternity, payment of pregnancy and birth expenses commensurate with his ability to do
so, and prompt legal action to seek custody of the child.‘ [Citation.]
       ―Although section 7611 makes no provision for a Kelsey S. father in its list of
presumptions, a father asserting valid Kelsey S. rights may effectively qualify for
presumed father status as the result of his constitutional right to parent, which overrides
any contrary statutory direction.‖ (J.L., supra, 159 Cal.App.4th at pp. 1022–1023.)
A. Kelsey S. Status
       K. had the burden of demonstrating the factual basis for his claim to Kelsey S.
rights. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.) We review the juvenile


                                               7
court‘s determination that he did not meet that burden under the substantial evidence test.
(Id. at pp. 679–680.) The substantial evidence standard is ―highly deferential.‖ (Silicon
Valley Taxpayers’ Assn., Inc. v. Santa Clara County Open Space Authority (2008)
44 Cal.4th 431, 447.) In applying that standard, ―[w]e review the entire record to
determine whether there is any substantial evidence, ‘whether or not contradicted, which
will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved
in favor of the respondent and all legitimate inferences indulged in to uphold the
decision, if possible. We may not reweigh or express an independent judgment on the
evidence.‘ ‖ (In re N.M. (2009) 174 Cal.App.4th 328, 335.)
       Mother‘s testimony provided substantial evidence to support the juvenile court‘s
determination that K. did not qualify for Kelsey S. status. Under Kelsey S., a biological
father is required, ―[o]nce [he] knows or reasonably should know of the pregnancy,‖
promptly to ―attempt to assume his parental responsibilities as fully as the mother will
allow and his circumstances permit.‖ (Kelsey S., supra, 1 Cal.4th at p. 849.) According
to Mother, K. left for Southern California within a week after learning of her pregnancy.
Thereafter, she heard almost nothing from him until two months after the birth. During
that time, she did nothing to prevent him from assuming his responsibilities as the
minor‘s prospective parent. Yet he provided no financial or emotional support to her, did
nothing to suggest he was willing to share custody of the baby, and took no legal action
to seek custody.2 A biological father who learns of the pregnancy prior to the baby‘s
birth yet does nothing to assume parental responsibilities until after the birth is not
entitled to Kelsey S. status. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055.)
       K.‘s argument for Kelsey S. status is based largely on his own testimony, in vain
disregard of our standard of review. Yet even if we take K.‘s testimony at face value, it
fails to satisfy Kelsey S. As K. acknowledged, he left for Southern California soon after
the pregnancy was announced. After he returned to the Bay Area, he provided Mother

       2
        K. points out he was incarcerated for a portion of this time, but incarceration
does not relieve a biological father of his duties under Kelsey S. (Adoption of O.M.,
supra, 169 Cal.App.4th at p. 680.)


                                              8
with no financial support beyond a diaper bag full of baby items, although he was in
contact with Mother, knew she needed help, and was working at the time. While K.
claims Mother put him off by asserting he was not the father, K. was aware the minor
might be his child, since he was having sexual relations with Mother at the time of the
minor‘s conception. Yet following the minor‘s birth, K.‘s attempts to contact Mother
were half-hearted, and he made no attempt to prove his paternity or seek custody. On the
contrary, he posted a message on Facebook questioning, rather than acknowledging, his
paternity. (Compare, e.g., Adoption of H.R. (2012) 205 Cal.App.4th 455, 468 [biological
father qualified under Kelsey S. when he participated in prenatal care and, after being
excluded by mother, filed an action claiming paternity, obtained his own DNA test, and
actively sought physical and legal custody].) K.‘s ambivalent conduct was an
insufficiently prompt and unequivocal assertion of parental rights to qualify under
Kelsey S.
B. Presumed Father Status
       Regardless of his entitlement to Kelsey S. rights, K. appears to contend the
juvenile court should have designated him, rather than D., the presumed father on the
basis of his biological parentage. Because biological parentage alone is not one of the
statutory presumptions under section 7611, it is not clear the juvenile court could have
designated K. as a presumed father over D. According to Kelsey S., a biological father
who fails to qualify under section 7611 is merely a ―natural father,‖ not entitled to the
various rights of a presumed father. (Kelsey S., supra, 1 Cal.4th at p. 825; see In re D.M.
(2012) 210 Cal.App.4th 541, 544 [biological father who does not qualify as presumed
father is not entitled to reunification services, but may be granted services at court‘s
discretion].) Nonetheless, because it has recently been suggested a natural father can be
considered for presumed father status (In re P.A. (2011) 198 Cal.App.4th 974, 981), we
consider the argument.
       K. waived this argument by not making it in the juvenile court. His motion for
presumed father status was based entirely on his claimed entitlement to Kelsey S. rights.
As he argued in his motion, he ―does not qualify as a presumed father under the Family


                                              9
Code requirements‖ but is a ―presumed father under [Kelsey S.].‖ K. made no argument
he should be granted presumed father status even if he failed to qualify for Kelsey S.
rights.
          In any event, we find no abuse of discretion in the court‘s refusal to select K. as
presumed father over D. K. argues D.‘s declaration of paternity is invalid, thereby
disqualifying him from presumed father status, but D.‘s testimony at the paternity hearing
demonstrated he was also entitled to presumed father status under section 7611,
subdivision (d), because he ―receive[d] the child into his home and openly [held] out the
child as his natural child.‖ (Ibid.) The validity of the declaration of paternity is therefore
immaterial.
          K. also argues the juvenile court should have denied presumed father status to D.
because he was likely responsible for the minor‘s injuries. At the time of the motion, it
had not been clearly established D. had caused the injuries, let alone that he had done so
intentionally. In the absence of persuasive evidence of intentional harm, it was
reasonable for the court to select D., proven to be a devoted father, over an uninvolved
biological parent.
                                      III. DISPOSITION
          The juvenile court‘s orders granting presumed father status to D. and denying K.‘s
motion for presumed father status are affirmed.



                                                     _________________________
                                                     Margulies, J.

We concur:

_________________________
Marchiano, P.J.

_________________________
Dondero, J.




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