Filed 10/27/14
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

In re D.S., a Person Coming Under the                 H039774
Juvenile Court Law.                                  (Santa Clara County
                                                      Super. Ct. No. 1-12-JD21412)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,

        Plaintiff and Respondent,

        v.

A.V.,

        Defendant and Respondent;

D.S. et al.,

        Appellants.


        This appeal involves competing claims for presumed father status of four-year-old
D.S. by the boy’s biological father, A.V., and his stepfather, B.E. The juvenile court
ruled that A.V. qualifies as a presumed father under Adoption of Kelsey S. (1992) 1
Cal.4th 816 (Kelsey S.) and that B.E. is a statutorily presumed father under Family Code
section 7611, subdivision (d).1 As required by section 7612, the juvenile court weighed
those competing paternity presumptions in view of the relevant facts and ruled that
A.V.’s presumption was founded on weightier considerations of policy and logic and,
thus, controlled.



        1
            All further unspecified statutory references are to the Family Code.
       B.E., D.S., and D.S.’s mother appeal. They maintain the juvenile court erred in
ruling that A.V. is a presumed father under Kelsey S. and abused its discretion in
resolving the conflicting paternity presumptions in A.V.’s favor. We find their first
challenge has merit and, therefore, shall reverse with directions.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       Mother and A.V. met in 2009, when mother was 19 years old and A.V. was 45
years old. Mother had just been released from jail and needed a place to stay, so she
moved in with A.V., who had an extensive criminal history. Mother began prostituting at
A.V.’s request, as she had done in the past. On December 8, 2009, mother and A.V. were
arrested for shoplifting. Following that arrest, A.V. remained incarcerated until
November 8, 2010. Mother, however, was released on bail.
       Mother learned that she was pregnant in February or March 2010 and believed
A.V. to be the father. She informed A.V., who was incarcerated, about the pregnancy
and sent him an ultrasound picture. Also in approximately March 2010 mother began
living with a new boyfriend, B.E.
       On July 2, 2010, after mother informed A.V. that California law precluded him
from appearing on the baby’s birth certificate if he was not present at the birth, A.V.
sought to obtain a declaration of paternity form. He never received the form. While A.V.
was incarcerated, mother withdrew approximately $100 from his jail account.
       D.S. was born in August 2010. B.E. was present at the birth. Mother and B.E.
married two months later. Shortly thereafter, on November 4, 2010, mother filed a
confidential parentage action naming A.V. as the alleged father. Days later, on
November 8, 2010, A.V. was released from custody. After his release, A.V. attempted to
file a paternity action, but was informed that a parentage action already was pending.
Mother never served A.V. in that action, and apparently nothing happened in the case
until A.V. filed a response over a year later, on January 4, 2012.


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        Meanwhile, A.V. saw D.S. on three occasions before he was incarcerated once
again in the spring of 2011. During one of the visits, A.V. gave mother $20 for diapers.
The first visit occurred in November or December 2010, when mother met A.V. at his
request outside a Safeway and let him hold D.S. According to mother, during the third
visit A.V. tried to kiss her against her will and made threats against B.E. after that visit.
        A.V. was in custody or in drug treatment programs for approximately the second
half of 2011, and thus had no contact with D.S. As noted above, A.V. responded to
mother’s parentage action on January 4, 2012.
        Mother had a son, A.E., with B.E. in January 2012.
        B.E. was incarcerated between February 5, 2012 and August 12, 2012, for theft.
In March 2012, while B.E. was incarcerated, A.V. stayed with mother and D.S. for a few
days.
        On March 12, 2012, B.E.’s mother (step-grandmother) received a call from
mother, who was high, indicating that she could not find her sons. Step-grandmother
located the boys, who moved in with her.
        On August 7, 2012, A.V. filed a request for genetic testing in the parentage action.
He contends he did so because step-grandmother would not let him see D.S.
        In August 2012, step-grandmother filed a petition for guardianship of D.S. and
A.E. in probate court. The probate court referred the case to the Santa Clara County
Department of Family and Children’s Services (Department) for a dependency
evaluation. The Department filed a juvenile dependency petition on behalf of D.S. on
September 11, 2012, alleging that he was at substantial risk of harm due to mother’s
substance abuse problem. That same day, the Department placed D.S. with step-
grandmother.
        A detention hearing was held on September 14, 2012. A.V. did not attend. At that
hearing, the juvenile court found B.E. to be D.S.’s presumed father under section 7611,
subdivision (d). The court ordered that D.S. remain with step-grandmother.
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       On October 30, 2012, A.V. moved to set aside the finding that B.E. was D.S.’s
presumed father and requested genetic testing to determine whether he was D.S.’s
biological father. The court ordered DNA testing the following day. The DNA test
confirmed that A.V. is D.S.’s biological father.
       In view of those results, on January 28, 2013, the court found A.V. to be D.S.’s
natural father. At the January 28, 2013 hearing, the court admitted into evidence several
reports filed by the Department. Those reports indicated that mother and B.E. had tested
drug-free at weekly and random tests between October 2012 and January 2013. As of
January 2013, mother and B.E. had obtained an apartment together and were employed.
It was reported that B.E. was arrested for a domestic violence incident in which he
pushed mother on December 23, 2012. Mother later said the incident was a
misunderstanding and the charges were dropped.
       Over the course of three days in February and March 2013, the juvenile court held
a contested hearing regarding A.V.’s motion to set aside the finding that B.E. was D.S.’s
presumed father. The court heard testimony from A.V., mother, B.E., and one of
mother’s friends who testified that she had observed A.V. threaten and push mother
during their relationship. Mother confirmed that A.V. had committed domestic violence
against her when they were together. On March 19, 2013, the court made a number of
factual findings, which are reflected in the factual background set forth above. The court
then concluded that A.V. was entitled to presumed father status under Kelsey S., noting
that A.V. “has publicly acknowledged his paternity since learning of the pregnancy,”
“attempted to promptly file a legal action to seek paternity for custody of the child” once
being released from prison, “made efforts to visit and have a relationship with the child
during the child’s first year of life consistent with the limited opportunities to visits
afforded by mother and consistent with his own circumstances which included return
trips to jail and time spent in various residential drug recovery programs,” and “made
token efforts to provide financial support for the child.” The court found that A.V.’s
                                               4
“efforts to visit [D.S.] were reasonably restricted by mother due to mother’s concerns
about [A.V.’s] threats of violence against mother’s new husband.” The court also set
aside the prior finding of presumed father status as to B.E. and set the matter for a further
contested hearing regarding whether B.E. also was a presumed father.
       The hearing on B.E.’s presumed father status was held on May 1, 2013. The court
heard testimony and admitted into evidence the Department’s addendum report dated
May 1, 2013. That report stated that mother and B.E. had successfully completed
outpatient drug treatment programs, continued to test drug-free, and were taking a
parenting class. As to A.V., the report stated that he too had successfully completed an
outpatient drug treatment program and was enrolled in school to obtain his GED. The
social worker noted that A.V. did not yet have a relationship with D.S., who did not
recognize A.V. during visitation. The report recommended that mother retain custody of
D.S. subject to the Department’s supervision and that A.V. be granted visitation. At the
May 1, 2013 hearing, the court released D.S. to mother and ordered weekly visitation
with A.V.
       At a hearing on May 14, 2013, the court made findings of fact and determined that
B.E. was a presumed father of D.S. under section 7611, subdivision (d) in that “he has
received [D.S.] into his home, he has held out [D.S.] as his son and he has demonstrated
an abiding commitment to [D.S.’s] wellbeing.” Thereafter, the court heard additional
testimony and argument as to which of the competing paternity presumptions should
prevail. The Department took no position on the issue. At the close of the hearing, the
court identified favorable and unfavorable facts related to each presumed father.
       As to A.V., the judge noted that he was the biological father, recently had taken a
number of positive steps in his life, had visited regularly with D.S. since the court
authorized visits, is a registered narcotics offender with an extensive criminal history, had
encouraged the mother to engage in prostitution, had engaged in an act of domestic
violence against the mother, had offered only “token” financial support for the child, had
                                              5
no present parent-child relationship with D.S., and had previously threatened to hurt B.E.
The court opined that A.V. “has not done all that . . . he could have done” to support his
son. Addressing A.V., the court stated: “You weren’t there for your son” when he was
born and “you didn’t take all the steps you could have taken” once you were released
from custody.
       With respect to B.E., the court noted that D.S. viewed him as a father, he assisted
mother before and after D.S.’s birth, B.E.’s mother had a close relationship with D.S.,
B.E. has a significant criminal history that has taken him in and out of D.S.’s life, B.E. is
a registered narcotics offender, and B.E. was arrested for domestic violence against
mother in December 2012.
       On May 28, 2013, the court ruled that A.V.’s paternity presumption was
controlling, reasoning that it was in D.S.’s “best interest that he have both [A.V.] and
[B.E.] involved in his life . . . to maximize his chance for success” and that having A.V.
“as his presumed father and [B.E.] as his stepfather . . . will best ensure that they both are
a part of [D.S.’s] life.” B.E., D.S., and mother timely appealed.
II.    DISCUSSION
       On appeal, B.E., D.S., and mother contend the juvenile court erred in finding that
A.V. qualifies as a presumed father under Kelsey S. The Department submitted a letter
brief in this matter but took no position on this issue.
       A.     The Kelsey S. Standard
       In Kelsey S., the Supreme Court held that “due process entitles a biological father
a meaningful opportunity to qualify as a presumed father.” (In re Jesusa V. (2004) 32
Cal.4th 588, 601.) While Kelsey S. was decided in the context of adoption, appellate
courts have extended it to dependency proceedings. (In re D.M. (2012) 210 Cal.App.4th
541, 551.)
       Under Kelsey S., “[i]f an unwed father promptly comes forward and demonstrates
a full commitment to his parental responsibilities--emotional, financial, and otherwise--
                                               6
his federal constitutional right to due process prohibits the termination of his parental
relationship absent a showing of his unfitness as a parent.” (Kelsey S., supra, 1 Cal.4th at
p. 849.) In the dependency context, this means that a biological father is entitled to
presumed father status if he satisfies the requirements of Kelsey S. In determining
whether a biological father has met the Kelsey S. requirements, courts consider all
relevant factors, including “[t]he father’s conduct both before and after the child’s birth”
and whether he “promptly attempt[ed] to assume his parental responsibilities as fully as
the mother [would] allow and his circumstances permit[ted].” (Ibid.) “[T]he father must
demonstrate ‘a willingness himself to assume full custody of the child--not merely to
block adoption by others.’ ” (Ibid.) “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.” (Ibid.)
       B.     Standard of Review
       “The burden is on a biological father who asserts Kelsey S. rights to establish the
factual predicate for those rights.” (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679.)
In reviewing the juvenile court’s factual findings with respect to whether A.V. met this
burden, we apply the substantial evidence test. (Id. at pp. 679-680; In re I.W. (2009) 180
Cal.App.4th 1517, 1528 [the substantial evidence test applies when the party that did not
have the burden of proof below contends that the party with the burden of proof
succeeded in spite of insufficient evidence].)
       Whether those facts satisfy the legal standard established by Kelsey S. is a mixed
question of law and fact. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 [“
‘Mixed questions of law and fact concern the application of the rule to the facts and the
consequent determination whether the rule is satisfied.’ ”].) Mixed questions of law and
fact are reviewed under the substantial evidence test “ ‘[i]f the pertinent inquiry requires
application of experience with human affairs . . . [and] is predominantly factual,’ ” but
are reviewed de novo if “ ‘the inquiry requires a critical consideration, in a factual
                                              7
context, of legal principles and their underlying values [and thus] is predominantly legal.’
” (Ibid.) “[I]n most instances, mixed questions of fact and law are reviewed de novo--
with some exceptions, such as when the applicable legal standard provides for a ‘
“strictly factual test, such as state of mind.” ’ ” (Id. at p. 385.)
       The question whether an unwed biological father’s actions reflect the level of
commitment required to ripen his inchoate constitutional interest into a constitutional
right under Kelsey S. implicates constitutional and public policy considerations, and thus
is a predominantly legal inquiry. (See People v. Cromer (2001) 24 Cal.4th 889, 901
[noting that it is the high “court’s usual practice” to review “mixed question
determinations affecting constitutional rights” de novo].) A number of courts have
similarly concluded that whether the facts satisfy the Kelsey S. standard is a mixed
question to be reviewed de novo, albeit without providing a rationale. (See Adoption of
Myah M. (2011) 201 Cal.App.4th 1518, 1539 [“To the extent that the issue [of whether a
father meets the Kelsey S. requirements] is a mixed question of law and fact, we exercise
our independent judgment in measuring the facts against the applicable legal standard”];
Adoption of H.R. (2012) 205 Cal.App.4th 455, 468 [same]; Adoption of O.M., supra, 169
Cal.App.4th at p. 680 [same]; Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717-
718 [same].)
       C.      Analysis
       Here, the relevant facts are largely undisputed. A.V. publically acknowledged his
paternity. He sought to take prompt legal action to establish paternity by requesting the
requisite paperwork while he was incarcerated and attempting to initiate a paternity
action upon his release in November 2010. But his legal efforts stalled in 2011 as a result
of his drug abuse and related criminality. A.V. also promptly sought to establish a
relationship with D.S. after his 2010 release by arranging three visits with D.S. through
mother. However, his efforts to forge a father-son bond were side-tracked for over a year
by his behavior, in particular, his attempt to kiss mother against her will, his threats
                                                8
against B.E., and his illegal drug use. Financially, A.V. provided only token support--
approximately $120 over D.S.’s first few years of life.
       The parties dispute whether these efforts are sufficient under Kelsey S. A.V. relies
heavily on Kelsey S.’s directive that trial courts “consider whether petitioner has done all
that he could reasonably do under the circumstances.” (Kelsey S., supra, 1 Cal.4th at p.
850.) He contends that his “criminality and incarcerations,” which he acknowledges
“interfered with his active assumption of parental duties,” constituted his relevant
“circumstances.” Given those circumstances, he contends, he did all he could do, thus
satisfying Kelsey S. B.E., D.S., and mother respond that A.V.’s own bad behavior cannot
excuse his failures as a father. That argument finds support in Adoption of O.M. There,
as here, the biological father’s “ability to demonstrate his commitment was impeded . . .
by the predictable consequences of his own criminal activity.” (Adoption of O.M., supra,
169 Cal.App.4th at p. 675.) The court there concluded that the father had not satisfied
Kelsey S., in part, because “his own actions in committing the parole violations, including
the use of illegal drugs, [had] led to his incarceration” and prevented him from providing
the requisite support to his child. (Id. at p. 680.)
       We tend to agree that a father whose own bad decisions preclude him from
carrying out his parental responsibilities does not satisfy the high bar set by Kelsey S.
But we need not decide whether a father’s incarceration is among the relevant Kelsey S.
“circumstances.” The dependency court itself found that A.V. “ha[d] not done all that . . .
he could have done” to support D.S. That finding is supported by substantial evidence,
including evidence that A.V. provided only minimal financial support to D.S., threatened
one of D.S.’s caregivers (B.E.), and did not vigorously assert his legal rights until the
Department was required to step in to safeguard D.S.’s wellbeing. Kelsey S. explicitly
requires that a father prove he “has done all that he could reasonably do under the
circumstances.” (Kelsey S., supra, 1 Cal.4th at p. 850.) The court’s finding that, in fact,


                                               9
A.V. did not do all that he could have done precludes a finding that A.V. is a presumed
father of D.S. under Kelsey S. The court erred in ruling otherwise.
       Having concluded that the court erred in finding A.V. to be a Kelsey S. father, we
need not consider appellants’ other contentions on appeal.
III.   DISPOSITION
       The juvenile dependency court’s orders finding A.V. to be a presumed father of
D.S. under Kelsey S. and finding that A.V.’s presumption outweighed B.E.’s presumption
are reversed. On remand, the court is directed to enter a new and different order finding
that A.V. is not a presumed father of D.S. under Kelsey S. and awarding B.E. presumed
father status. On remand, the juvenile court shall consider whether B.E.’s status as
presumed father requires modification of any existing orders related to custody, family
maintenance, and the like.




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                              Premo, J.




       WE CONCUR:




             Rushing, P. J.




             Elia, J.




In re D.S.
H039774
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. 1-12-JD21412

Trial Judge:                        Hon. L. Michael Clark

Counsel for Appellant:              Sixth District Appellate Program
L.S.-E. (Mother)                    Neale B. Gold

Counsel for Appellant:              Sixth District Appellate Program
D.S. (Minor)                        The Wald Law Group
                                    Deborah H. Wald
Counsel for Appellant:              Haworth Law Office
B.E. (Step-father)                  James W. Haworth

Counsel for Respondent:             Sixth District Appellate Program
A.V. (Father)                       Julie E. Braden

Counsel for Plaintiff/Respondent:   No appearance
Santa Clara County Department of
Family and Children’s Services




In re D.S.
H039774
