Filed 6/26/14 Adoption of K.M. CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


Adoption of K.M., a Minor.


MICHAEL S. et al.,

     Plaintiffs and Respondents,                                       G049149

         v.                                                            (Super. Ct. No. AD79081)

SAMUEL P.,                                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Ronald
P. Kreber, Judge. Affirmed.
                   Brent Riggs, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   John A. Giffen; Broedlow Lewis, Jeffrey Lewis and Kelly Broedlow
Dunagan for Plaintiffs and Respondents.
                   No appearance for the Minor.
                                          *                  *                  *
                                           I. INTRODUCTION
                 The issue in this appeal is whether the evidence compelled the trial court to
conclude that Samuel, who alleges he is the biological father of K.M., qualifies as a
presumed father under standards enunciated in Adoption of Kelsey S. (1992) 1 Cal.4th
816, and hence has the right to block the adoption of K.M. by Michael and Tasha.
Because the evidence does not compel any such conclusion, we affirm the judgment
finding Samuel’s consent is not necessary for the adoption.1 In overview, this case is a
combination of Adoption of Michael H. (1995) 10 Cal.4th 1043 [alleged father’s delay in
asserting parental right between July and November compelled finding that he did not
qualify under Kelsey S.] and Adoption of O.M. (2008) 169 Cal.App.4th 672 [the “father’s
ability to demonstrate his commitment was impeded to a far greater extent by the
predictable consequences of his own criminal activity”].) At the most crucial point in the
timeline – when Samuel was first informed of Kathleen’s pregnancy – he was
incarcerated and unable to commit to providing an income or stable home for the child.
Under Michael H., that alone is sufficient to uphold the trial court’s judgment. And there
is much more to support the trial court’s decision, so we affirm it.
                                                 II. FACTS
A. Events Prenatal
                 K.M. was born in early September 2012. Both at the time of her
conception (about December 2011) and at the time of her birth, her birth mother Kathleen
was married to a man named Manuel. According to Kathleen’s declaration filed in
support of adoption by Michael and Tasha, Kathleen went to a bar one night, and ended




         1        Technically, Samuel’s October 16 notice of appeal, was premature as taken only from an unsigned
minute order. However, a formal order, the equivalent of a judgment, was signed by the trial judge and filed
October 23, 2013. We therefore deem the appeal to be from that formal order, not the mere minute order. (See Cal.
Rules of Court, rule 8.406(d).)


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up having sex with three different men, so she didn’t know the child’s biological father.
She did tell Tasha “numerous” times that Samuel “could not” be the father.2
                 Kathleen learned of her pregnancy in February 2012 and, that same month,
told Samuel about it. The previous month Samuel had been incarcerated on a drug
charge so the visit was at the jail, where he would remain until July. At the time
Kathleen told Samuel of the pregnancy, she was living in a motel, having been “forced []
out” – Samuel’s own words – of Samuel’s father’s house, in which she had been living
prior to Samuel’s incarceration, by Samuel’s nieces.3 Samuel characterized Kathleen’s
situation as it stood in February 2012 as “homeless.”
                 At the jail Kathleen told Samuel she planned to have the child adopted, but
said she wouldn’t go through with the adoption if Samuel could provide a “stable home
environment” and “could support the family.” Samuel told her he could not – as he
styled her statement – “‘meet her demands.’” He later testified that his reaction at the
time was based on being in jail and not having any income, and also on the fact he suffers
from several serious ongoing health problems, including “problems” with his liver and
his kidneys, manifesting themselves in edema and dehydration.
                 During the course of Kathleen’s pregnancy and his own January-July
incarceration, Samuel wrote letters to his father asking him “don’t forget to help Katie.”
He also took, while he was in jail, six to eight weeks of parenting classes.4 The record is,
however, clear that with the exception of procuring a baby crib, and some clothes, toys



         2         Tasha’s declaration to that effect was not more specific as to when Kathleen made these
statements. We should also note there that even if Kathleen’s bar story was pure fantasy and Samuel was the
biological father of K.M. it would make no difference to the outcome of this appeal.
         3         In a question posed by his attorney in his own case-in-chief, Samuel was asked about Kathleen’s
being “somewhat concerned” about her pregnancy. Samuel answered: “Yes. Because of her – at the moment she
had my – my family nieces moved her out of the house while I was gone [in jail]. I had a – some family members
while I was gone just forced her out, basically, to my father’s home and she was helping my mother, who is dying
from – she has – she’s on hospice and she was her caregiver. And they got another person to care for her and they
moved her out of the room while I was incarcerated.”
       4           Apparently he was transported to Santiago College for the classes.


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and diapers placed at his father’s house sometime after his release in July 2012, Samuel
never paid or offered to pay any actual money for Kathleen’s and the unborn child’s
support both before or after K.M.’s birth.5
                 Kathleen did not instigate dissolution proceedings to end her marriage to
Manuel; he did, in March 2012. While the final judgment of dissolution of the Manuel-
Kathleen marriage was filed in mid-June 2012, the date the status of marriage was
terminated was September 20, 2012. K.M. was born around two weeks before that date.
B. Birth and Post Birth
                 The record is fairly clear that between July 2012 – when Samuel was
released – and the September birth, Samuel and Kathleen were living in rooms paid for
by prospective adoptive parents – first, a couple who originally hoped to adopt her child
and then, in the final month, by Michael and Tasha. In that final month, Samuel and
Kathleen were living in a motel in Buena Park near Knott’s Berry Farm. Kathleen
admitted that the night before the birth, she took “a couple hits” from a friend’s
methamphetamine pipe, consequently K.M. was born the next day with
methamphetamine in her system. Samuel presented no evidence that he was away from
the apartment that evening, or that he made any effort to try to prevent a pregnant woman
about to give birth from ingesting a harmful, illegal drug.
                 Samuel was asleep when Kathleen went into labor. Because of mixed-up
text messages, Samuel did not reach the right hospital until about 12 hours after the birth.
He and his father took pictures of the baby but were otherwise not allowed in the nursery.
Kathleen signed papers authorizing the adoption by Michael and Tasha, and reiterated the
story there were three possible biological fathers and she did not know who was the


       5         By the time of the hearing, Kathleen had married Samuel and was supporting his quest to block
the adoption. She testified that after the birth Samuel “asked a couple times” of Michael and Tasha about possibly
paying for the motel room where they put Kathleen up after the birth. However, by then the child was living with
Michael and Tasha, and Samuel’s own testimony was clear he never offered to pay support for the child.


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biological father of the child. Tasha was allowed to take K.M. from the nursery the next
morning. Kathleen signed papers waiving her right to revoke her consent to the adoption,
and Manuel signed a waiver of his right to notice of the adoption. Samuel was not named
on the birth certificate. Kathleen testified that, at the time, she “was afraid of him getting
her.”
              For two weeks after the birth Kathleen and Samuel stayed at a motel in
Anaheim paid for by Michael and Tasha. After that, they stayed at a room in Garden
Grove, again paid for by Michael and Tasha.
              Within a week of the birth, Samuel drove to the courthouse where he told a
clerk he wanted to stop the adoption, but he had no driver’s license to prove his identity.
Sometime thereafter he obtained one and returned to the courthouse. He testified that
because he did not know the prospective adopters’ names, and because he had no case
number, he was unable to file anything. He also testified that on the 29th day after the
birth he drove with Kathleen to the courthouse, but their truck broke down and the next
court day being a holiday, he assumed he had missed the 30-day time limit to file an
objection to the adoption. He described his state of mind at that time as “emotional, just
drained, thinking it was over.”
              On October 11, 2012, Michael and Tasha filed the formal adoption
proceeding we now review. Nothing happened in the case during the rest of October, but
Samuel was once again jailed – albeit, according to his testimony, only briefly and
without charges – in November. He made an attempt to contact Tasha in December
asking for pictures, but Tasha hung up, telling him to go through their lawyer.
              Samuel was jailed again in January 2013, on charges of possessing a
controlled substance. He stayed in jail until at least May 15. On February 13, 2013,
while still in jail, he called the California Department of Social Services and told an
adoption specialist he wanted custody of his child, but had no funds and asked for a pro


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bono attorney. The department gave him the name of an attorney, a family law center,
and a paralegal center. Samuel presented no evidence he ever contacted any of these
entities.
                  Rather, in May he did some legal work on his own behalf. The
circumstances of that work were: On May 15, while still in jail, he was served with the
adoption petition in this case. The papers contained a notice he had 30 days after the
service of the papers to file an action to establish his own paternity. From his jail cell,
Samuel filed, in the period May 17 through 23, a series of handwritten documents,
essentially seeking to establish his own paternity and halt the adoption.
                  These papers generated the hearing on October 9, 2013, leading to the
judgment at issue in this case. The trial judge found Samuel was well aware of the
planned adoption before the birth of K.M., took no action to ever support the child either
before or after birth, and did not qualify as a presumed father under Kelsey S. The trial
court also found it was in the best interests of K.M. to terminate Samuel’s rights. Samuel
himself filed the notice of appeal from the initial minute order within the week.
                                              III. DISCUSSION
                  The basic framework governing Samuel’s appeal was laid down by our
Supreme Court in Kelsey S., supra, 1 Cal.4th 816. The Kelsey S. court confronted a
statutory scheme in which a man in Samuel’s position – an unwed biological father –has
virtually no right at all to contest an adoption.6 A man might be the biological father of
the child (called a “natural father” in the opinion), but statutorily that, by itself, means
nothing. Unless the man is a presumed father, he has no parental rights. (Kelsey S.,


          6       There has been no DNA test yet establishing that Samuel is, or is not, the biological father of K.M.
Samuel claims his indigency prevented him from paying for one. He did, however, in a handwritten June 2013
filing, “demand[]” – his word – the court pay for one. Since the cases we rely on (Kelsey, Michael H. and O.M.) all
assumed that the unwed fathers there were indeed the biological fathers of the children involved, and because we
conclude Samuel does not qualify under Kelsey S. for non-biological reasons, it makes no difference in this appeal
whether Samuel had a DNA test or not.


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supra, 1 Cal.4th at p. 825 [noting statutory requirement of being a presumed father] and
p. 830 [noting statutory scheme allowed mother where natural father was not a presumed
father to “unilaterally preclude” natural father of the right he might otherwise have to
withhold consent to adoption].) The Kelsey S. court, however, went on to conclude that if
the natural father had shown a level of commitment to assuming the responsibilities of
parenthood, he could, as a matter of constitutional law, qualify as a presumed father.
(See id. at pp. 847-848.) Thus functionally, Kelsey S. expands the definition of a
presumed father to include a man who does not otherwise qualify under the statute, as
long as he meets a certain standard of commitment to parenthood.
                 But what is that standard? Kelsey S. itself was not a fact-based decision. It
does not, for example, give the reader, as later cases do (indeed, as we have done here) a
detailed account of the appellant’s behavior vis-à-vis the pregnancy.7 But while the
court’s linguistic formulations were general, the standards enunciated by the court were
quite clear and quite high. The man has to have made “diligent and legal attempts to
obtain custody of his child and to rear it himself.” (Kelsey S., supra, 1 Cal.4th at p. 821.)
And even a man who has been “indisputably ready, willing, and able to exercise the full
measure of his parental responsibilities can have his rights terminated merely on a
showing that his child’s best interest would be served by adoption.” (Id. at p. 847.)
Perhaps most importantly, the man must have “‘promptly taken every available avenue to
demonstrate that he is willing and able to enter into the fullest possible relationship with
his under-six-month-old child.’” (Id. at pp. 838-839, italics added [quoting In re Raquel
Marie X. (N.Y. 1990) 76 N.Y.2d 387, 403].) The emphasis on promptness was later
repeated in the Kelsey S. court’s encapsulation of its holding: “The statutory distinction



          7        And in fact the actual case might ultimately have gone against the man who asserted parental
rights in the case. The Supreme Court did not say he had the right to block the adoption, it merely remanded the
matter for further proceedings in the trial court.


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between natural fathers and presumed fathers is constitutionally invalid only to the extent
it is applied to an unwed father who has sufficiently and timely demonstrated a full
commitment to his parental responsibilities.” (Id. at p. 849.)
                  Promptness and fullness were fleshed out in our high court’s next venture
into the area of unwed fathers seeking parental rights as a matter of constitutional
common law, Michael H., supra, 10 Cal.4th 1043. There, the high court reversed a
determination of the appellate court that the would-be presumed father was a presumed
father with directions to enter judgment against him because, as a matter of law, he did
not qualify under Kelsey S.
                  In Michael H., the trial court found the biological father’s efforts to assert
his parental relationship were “‘were nothing short of impressive,’” and “‘truly
extraordinary.’” (Michael H., supra, 10 Cal.4th at p. 1053.) In particular, in the two
years following the birth, the biological father had “never wavered in expressing his
desire to take on the full responsibility of fatherhood,” and had “‘relentlessly’” sought
visitation rights (at least by urging the matter on his attorneys). (Ibid.) Accordingly, the
trial court blocked the adoption, and the appeal in Michael H. was by the prospective
adoptive parents. The appellate court, however, perceiving Kelsey S. to stand for a
“‘balancing test,’” affirmed the trial court’s decision. (Id. at p. 1054.)
                  But the appellate court had misperceived Kelsey S. If there was one clear
theme to the Michael H. opinion, it was that prompt action by the biological father meant
action from the very beginning of his fatherhood. Justice Mosk, writing for a six-justice
majority in Michael H.,8 eloquently expressed the Kelsey S. unwed father problem from
the point of view of the mother-to-be: A pregnant woman needs certainty. She must be


        8         Justice Kennard dissented on the point as to whether the biological father had been sufficiently
prompt, but, thinking the decision in Kelsey S. to make it retroactive was a mistake, concurred in the result because
too much time had passed while the adoptive parents were raising the child. (See Michael S., supra, 10 Cal.4th at
pp. 1060-1061, 1071-1073 (dis. and conc. opn of Kennard, J.).)


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able to plan what to do about her pregnancy. She needs stability. And those needs are
thwarted to the degree the unwed biological father doesn’t promptly – and fully – commit
to parenthood.9 Thus even though the biological unwed father’s post natal efforts in
Michael H. were impressive, his initial prenatal reaction doomed his case. The Supreme
Court noted that the trial court had also found between the time the biological father first
learned of the pregnancy in early July 1990 until November 1990, he made no attempt to
fully commit to his parental responsibilities. (Id. at p. 1060.) That not only required
reversal, but reversal with directions to enter judgment concluding the biological father
had no right to veto the adoption. (Ibid.)
                  Adoption of O.M. (2008) 169 Cal.App.4th 672 adds an additional gloss to
Michael H.’s emphasis on the need to commit fully and promptly that is pertinent here.
In fine, O.M. obviates much discussion here. It holds that being incarcerated is no
excuse. (See id. at p. 675.)
                  In O.M., the biological father was arrested for a parole violation (the
violation was use of methamphetamine and marijuana) only a week after the pregnancy
was confirmed. (O.M., supra, 169 Cal.App.4th at p. 676.) He would stay in jail for four
months thereafter. (Ibid.) Said the court: “Here, B.R. [the biological father] learned of
the pregnancy in February 2006, and L.T. [the mother] did not start refusing to see him at
least until sometime in June 2006. B.R. has not established that during the intervening
four months, he provided support to L.T. of any kind – financial, emotional, or practical.



          9         The passage is worth quoting: “John and Margaret [the prospective adoptive parents] also contend
their reading of Kelsey S. serves several important public policy goals. We find their points persuasive. They first
assert that an unwed father should be encouraged to promptly inform the biological mother during pregnancy
whether he objects or consents to the child’s adoption at birth, and that he should be denied constitutional protection
after birth if he concealed his views during pregnancy. They stress that during pregnancy the mother must make
many important decisions, most importantly whether to have an abortion, to prepare an adoption plan, or to keep
the baby, and that she has only a relatively short time to make and implement her choice. It is therefore important
that the father give the mother prompt notice whether he plans to object or consent to adoption so that she can
evaluate that and other options on an informed basis.” (Michael H., supra, 10 Cal.4th at p. 1055, italics added.)


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All he has shown is that his parents furnished her with some clothing and money, though
apparently not enough to prevent her from needing the support of T.M. and J.R. once
they came into the picture. [¶] The record supports the conclusion that B.R. was
prevented from supporting L.T. during the initial period of her pregnancy, before she
began refusing to see him, not because of any unilateral action on her part, but by his
own actions in committing the parole violations, including the use of illegal drugs, that
led to his incarceration. We do not discern any violation of equal protection or due
process in holding an unwed father’s own criminal activity against him when assessing
whether he has met the criteria for Kelsey S. rights.” (Id. at p. 680, second italics added.)
                 The principles stated in Michael. H. and O.M. cover Samuel’s arguments in
this appeal. As in Michael H., there was a clear absence of a full commitment to parental
responsibility in the critical initial period – here, February to May, in Michael H., July to
November – when the prospective mother needed certainty and had to be able to plan a
future. And, just as in O.M., Samuel’s ability to step forward at the crucial point in time
was limited by his own conduct in violating his parole and getting arrested on a drug
charge.10
                 We would also note this: Samuel’s strongest evidence that he was willing
to commit to full parental responsibility in the prenatal period was his writing to his
father from jail asking his father “don’t forget to help Katie.” But even that evidence is
undercut by the fact that after Samuel’s incarceration and during the critical early months
of pregnancy, Kathleen was forced out of Samuel’s father’s home and rendered homeless.
The prospect of being pregnant with a child not by her husband and being homeless to
boot must have been terrifying. And yet that is the position Kathleen found herself in
because of Samuel’s violation of his parole.


         10        Samuel contended the charges against him were false when he was re-arrested after K.M.’s birth.
But the record is absent of any assertion that his initial arrest in January 2012, was anything but valid.


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              Nor did Samuel’s efforts at committing to parenthood include any effort on
his part to try to dissuade Kathleen from ingesting methamphetamine late in her
pregnancy. What was someone doing with a methamphetamine pipe in Samuel and
Kathleen’s apartment the night prior to K.M.’s birth?
              Moreover, even Samuel’s efforts in the post-natal period were less than
impressive. (And certainly less impressive than the unwed father’s efforts were in
Michael H.) Even crediting Samuel’s testimony that he was arrested on false charges, he
never quite got his act together in asserting his legal rights with regard to K.M. For
example, in February 2013, he was given three legal referrals who, according to the
adoption specialist’s report, would have helped him free of charge. By that time he
certainly would have had access to the case number to give to one of the referrals. But he
didn’t.
              The case relied on by Samuel, Adoption of H.R. (2012) 205 Cal.App.4th
455, is inapposite. There, the trial court did find the biological father was a presumed
father under Kelsey S., and the appellate court found substantial evidence to support the
trial court’s conclusion. While H.R. didn’t discuss Michael H. at all, it is relatively clear
from the opinion that the biological father there had fully committed to his parental
responsibilities in the crucial prenatal period. (See id. at p. 457 [“Long before minor was
born, father had sought to establish his parental rights.”].)


                                     IV. DISPOSITION
              Because Samuel does not qualify as a presumed father under Kelsey S., we
need not consider the impact of the trial court’s finding that termination of Samuel’s
parental rights and adoption by Michael and Tasha is in K.M.’s best interest. Nor need
we consider with the now-academic problem of whether, under Dawn D. v. Superior




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Court (1998) 17 Cal.4th 932, Samuel even had standing to contest the adoption in the
first place. The judgment of October 23, 2013, terminating Samuel’s parental rights for
adoption is, accordingly, affirmed. Respondents are to recover their costs on appeal.




                                                BEDSWORTH, ACTING P. J.

WE CONCUR:




MOORE, J.



THOMPSON, J.




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