Filed 7/11/14 Adoption of B.K. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 B.K., a Minor.

M.K. et al.,

     Plaintiffs and Respondents,                                       G049223

         v.                                                            (Super. Ct. No. AD79106)

BRANDON G.,                                                            OPINION

     Defendant and Appellant;



                   Appeal from a judgment of the Superior Court of Orange County, Ronald
P. Kreber, Judge. Affirmed.
                   Suanne I. Honey for Defendant and Appellant.
                   Leslie A. Berry and Ted R. Youmans for Plaintiffs and Respondents M.K.
and L.K.
              Marsha F. Levine, under appointment by the Court of Appeal, for Plaintiff
and Respondent Brianna D.


                                  *          *           *
              Brandon G. appeals from a judgment terminating his parental rights after
the birth mother, Brianna D., consented to adoption of the couple’s newborn daughter,
B.K., by M.K. and L.K.1 (Fam. Code, § 7662; all statutory references are to the Family
Code unless noted.) Brandon challenges the sufficiency of the evidence to support the
trial court’s decision. Because substantial evidence supports the trial court’s judgment
Brandon was not a presumed father, and his consent to the adoption was not required
(Fam. Code, § 7611, subd. (d); Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.);
Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051 (Michael H.)), we affirm.
                                             I
                            FACTS AND PROCEDURAL HISTORY
              Brianna met Brandon in 2009, during her freshman year of high school. He
was two grades ahead of her. They began dating in late 2011 and became sexually
intimate shortly thereafter. According to Brianna, they had several discussions about
getting married and starting a family together. Brandon seemed to favor the idea, and the
couple discussed how they would support a baby.
              On February 15, 2012, they decided to stop using contraceptives so Brianna
could get pregnant. Brandon testified he and Brianna did not plan a pregnancy, but
conceded they had a “mature conversation” before Brianna stopped taking birth control
and he was okay with having a child. In late March, Brianna learned she was pregnant
and shared the news with Brandon, who seemed disappointed when she told him. When



       1       We identify the parties and witnesses by their given names and last initials
to protect the identity of the minor child.

                                             2
Brianna asked him how they were going to raise the baby, he said “we’ll deal with it
when it comes.”
              Brandon told no one about the pregnancy. He expressed fear of being
arrested for unlawful sexual intercourse. On one occasion, when someone asked Brianna
if she was pregnant, Brandon said “‘[s]ee, this is why I can’t take you out.’”
              In April 2012, the day after Brianna’s 18th birthday, she moved in
with Brandon’s family. Brandon’s mother, Heather, also expressed concern Brandon
could be arrested for “statutory rape.” She asked Brianna not to tell Brianna’s mother,
Kim E., about the pregnancy, and not to obtain prenatal care until she was off her
parents’ medical insurance. Heather later advised her to tell Kim the due date was in
January, or nine months after Brianna’s 18th birthday. Heather told her Brandon was on
a 90-day probation period for his new job at Ashford University and would be fired if any
charges were brought. Heather advised Brianna she could live with their family rent free.
Brianna later found out Brandon may have paid Heather $300 a month in rent for Brianna
and himself, but Brianna only saw Brandon pay rent once.
              The couple’s relationship began souring in August 2012. Brianna felt
Brandon emotionally cheated on her with his friend, Laura, who he would constantly text
and see often.2 Their alienation culminated at the couple’s baby shower in late August.
One of Brianna’s friends testified Brandon did not open any gifts, nor did Brandon invite
any of his friends other than Laura. Brandon claims he invited no one else because
Brianna extended an open invitation on Facebook and he assumed his friends would
come. According to Brianna, he left the party and was absent a long time. After the baby
shower, Brianna suggested counseling, but Brandon refused.
              Brianna felt Brandon did not support her emotionally. When Brandon
came home from work, he locked himself in his bathroom for hours at a time so he could

       2    Laura testified she and Brandon were close friends, but never romantically
involved. They saw each other about once a month.

                                             3
be alone. He spent time with his friends, but would not let Brianna accompany him,
leaving her alone at his house. Brandon admitted he did not attend Brianna’s first
obstetrical appointment, and when Brianna texted him after the appointment telling him
their baby had a heartbeat, he responded dismissively, “‘Later babe.’”
             Brianna also complained Brandon did not financially support her or their
unborn child, but rather spent money on leisure goods. She was not allowed to bring her
own car to the G.’s, and Brandon refused to insure her on his vehicle. He declined to pay
for prenatal or pregnancy expenses, leaving Brianna to pay $750 for these costs. Brandon
bought neither medical insurance for the baby nor maternity clothes for Brianna. During
Brianna’s pregnancy, however, Brandon admittedly spent several hundred dollars on
videogames, and $500 on an iPhone. He also ate out for lunch several times a week even
though Brianna made him a lunch every day. The only baby-related item that Brandon
purchased while Brianna lived with him was a pack of diapers.
             Brandon testified he took care of Brianna’s financial needs. When he first
learned of the pregnancy, he was making $8.50 an hour working at a tuxedo store. He
immediately obtained better employment at Ashford University making $18.75 an hour.
He paid rent to his mother from May through September in cash, but admitted he had no
record in his checking account to show he made those payments. In July, he and Brianna
found an apartment, but decided to wait until the rent went down. They discussed
purchasing a car for Brianna and agreed he would purchase Heather’s car if they did not
have a family car by the time the baby was born. They also discussed acquiring car
insurance for Brianna, but felt it would be a waste of money because Brandon’s
grandfather was available to drive her. Brandon also stated he bought things for the
baby, but these purchases occurred in December, after litigation had begun.
              As a result of their bickering, Heather made Brandon and Brianna sign an
agreement designating their household obligations. The agreement did not impose any
formal chores on Brianna, but she frequently helped out around the house.

                                            4
               Brandon often disparaged Brianna’s mother, Kim, once revealing that if
forced to sit next to her he would want to slap her. On September 24, Brianna read
Brandon’s text message that said he wanted Brianna’s family to “‘die in a fiery plane
crash.’” Brianna shoved Brandon, packed her bags, and left the G.’s. Brandon was laid
off from his university job later that day and did not tell Brianna, who moved back in
with Kim after September 24. Brianna paid her for rent and pregnancy-related items,
such as pain medicine and a breast pump.
               After Brianna moved out, she and Brandon met four times to discuss their
daughter’s future. At the first meeting they discussed the possibility Brandon’s
grandparents, Chuck and Terrie T., would raise the child along with Heather, but Brianna
rejected the idea. At the second meeting they discussed adoption for the first time.
Brianna felt adoption was best because she grew up in a home with divorced parents and
did not want to impose that on her daughter. Brandon said “‘[u]ltimately, it’s up to
you,’” but later sent mixed messages about his willingness to put the child up for
adoption.
               After their second meeting, on October 23, 2012, three days before B.K.
was born, Brandon sent a note to Brianna’s obstetrician objecting to the adoption. When
Brianna advised Brandon of B.K.’s birth, he responded with a text message stating “‘[s]o
you mean she’s been adopted against my will.’” Brandon never requested to be present
for his child’s birth.
               M.K., the prospective adoptive father, testified Brandon did not
reach out to his wife or him before the baby’s birth, and not until after Brandon filed his
lawsuit. He also sent the K.’s several checks after the litigation commenced.
               Brandon filed a petition to establish a parental relationship in October
2012 and served it on Brianna a week later. B.K. was born later in October 2012. She
went home from the hospital with M.K. and L.K. It is conceded Brandon had no idea of
the expenses involved in his daughter’s birth.

                                              5
                Brianna’s adoption coordinator, Sarah J., met with Brandon on November
15, 2012. She testified Brandon did not seem against the adoption, but rather was angry
he missed his daughter’s birth. Sarah told Brandon the K.’s had offered to let him meet
the baby, but he refused.
                In November 2012, Brianna and the K.’s jointly filed a request to adopt
B.K., and a petition to determine Brandon’s parental rights and the necessity of his
consent to adoption. (§§ 7662, 7664.) Following a court trial in July 2013, the court
terminated Brandon’s parental rights after it determined his consent was not required for
the adoption.
                                                II
                                          DISCUSSION
                Brandon contends he qualifies as a statutory presumed father under section
7611, subdivision (d) (§ 7611(d)), because Brianna lived with him during a portion of her
pregnancy. He also argues he qualifies as a quasi-presumed father because he made a full
commitment to his parental responsibilities by welcoming Brianna into his home while
she was pregnant, giving her a baby shower, and transporting her to school.
                A biological father’s parental rights often turn on whether he attains the
status of a presumed father. (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 718;
Kelsey S., supra, 1 Cal.4th at p. 823.) “Under California law, an unwed biological father
has a right to withhold consent to the adoption of a child only if he meets the definition of
a ‘presumed father.’” (Adoption of A.S. (2012) 212 Cal.App.4th 188, 202 (A.S.).) “‘If a
man is the presumed father of a child, the child cannot be adopted without his consent
[citation], unless the trial court finds, on statutorily specified grounds, that he is unfit.
[Citation.] If, however, he is not a presumed father of a child, the child can be adopted
without his consent, and his parental rights can be terminated, unless the court determines
it is in the child’s best interest for him to retain his parental rights. [Citation.]’”



                                                6
(Adoption of H.R. (2012) 205 Cal.App.4th 455, 465; Adoption of Daniele G. (2001)
87 Cal.App.4th 1392, 1394-1395.)
              “Section 7611 sets forth the ways in which a man can attain the status of
presumed father: ‘A man is presumed to be the natural father of a child if he meets the
conditions provided in Chapter 1 (commencing with Section 7540 [(presumption arising
from birth of child during marriage)] ) or Chapter 3 (commencing with Section 7570
[(voluntary declaration of paternity)]) . . .’ or in specified other circumstances including
marriage or attempted marriage to the mother under certain conditions, and having
‘receive[d] the child into his home and openly [held] out the child as his natural child.’”
(A.S., supra, 212 Cal.App.4th at p. 202.)
              Here, Brianna and the K.’s filed a petition to determine Brandon’s parental
rights pursuant to section 7662. Section 7662 generally provides that if a mother
relinquishes or consents to the adoption of her child, she or the prospective adoptive
parent must file a petition to terminate the parental rights of the alleged father, absent
certain circumstances not present in this case. Other proceedings affecting a child (see,
e.g., § 3000 et seq. [concerning child custody]; § 3500 [child support]; § 7500-7730
[addressing rights of parents, and presumptions of paternity, blood tests to determine
paternity, and establishment of paternity by voluntary declaration]) are stayed pending
final determination of proceedings to terminate the parental rights of the alleged father.
A.   Substantial Evidence Establishes Brandon is Not a Statutorily Presumed Father
              Brandon first contends he openly received the child into his home and
openly held out the child as his natural child. He argues “bringing the Mother into [the
father’s] home and holding the child out as his own in utero” qualifies him as a presumed
father under § 7611(d). We disagree. To become a presumed parent under section
§ 7611(d), the parent must actually receive the child into his home. (Kelsey S., supra,
1 Cal.4th at pp. 826, 830, 847; see Michael H., supra, 10 Cal.4th at p. 1051 [man must
“physically bring the child into his home”].)

                                                7
              Here, Brandon never received B.K. into his home because the K’s took
physical custody of B.K. immediately after her birth. Brandon could not attain the status
of a statutorily presumed father under section § 7611(d), simply by living with Brianna
during her pregnancy.3 Brandon therefore does not qualify as a statutorily presumed
father. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1221-1232 [mother lived with
biological father during pregnancy but was no longer living with him when baby born;
court held father did not receive child into his home].)
B.   Substantial Evidence Establishes Brandon is Not a Presumed Father Under Kelsey
S. and Its Progeny
              Brandon next challenges the trial court’s conclusion that he was not a
presumed father under Kelsey S., supra, 1 Cal.4th 816. Kelsey S. “established that a
natural father who does not have a right to block a third party adoption as a presumed
father under section 7611 may nevertheless have a constitutional right to do so.
[Citations.] In Kelsey S., the unwed mother sought to place the child for adoption; the
natural father sought custody of the child but was prevented from achieving the status of
presumed father under the provisions of what is now section 7611, subdivision (d),
because he was prevented from receiving the child into his home. [Citation.] The court
held that the statutory scheme ‘violates the federal constitutional guarantees of equal
protection and due process for unwed fathers to the extent that the statutes allow a mother
unilaterally to preclude her child’s biological father from becoming a presumed father
and thereby allowing the state to terminate his parental rights on nothing more than a
showing of the child’s best interest.’ [Citation.]” (A.S., supra, 212 Cal.App.4th at
p. 208.)
              Kelsey S. “held that “‘[a] father who has promptly taken every available
avenue to demonstrate that he is willing and able to enter into the fullest possible

       3      We assume for present purposes the home where Brandon lived with his
family qualified as his home under § 7611(d).

                                              8
relationship with his under-six-month-old child should have an equally fully protected
interest in preventing termination of the relationship by strangers, even if he has not as
yet actually been able to form that relationship.’” [Citations.] ‘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. Absent such a showing, the child’s well-being is presumptively
best served by continuation of the father’s parental relationship. Similarly, when the
father has come forward to grasp his parental responsibilities, his parental rights are
entitled to equal protection as those of the mother.’ (Citation.)” (A.S., supra,
212 Cal.App.4th at pp. 208-209.)
              Kelsey S. focuses on the natural father’s commitment to his parental
responsibilities rather than his emotional support of the mother. Nothing in Kelsey S.
suggests a father is required to love the mother, or to propose marriage to qualify as a
fully-committed parent. Michael H. is not to the contrary. The court there agreed with
the adoptive parents a “mother may well need emotional, financial, medical, or other
assistance during pregnancy, particularly if she . . . is a teenager,” but this was because
“prenatal care is critically important to both the mother and the child.” (Michael H.,
supra, 10 Cal.4th at p. 1055, italics added.)
              In determining whether the biological father has demonstrated an
unequivocal commitment to his parental responsibilities, [t]he 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

                                                9
birth expenses commensurate with his ability to do so, and prompt legal action to seek
custody of the child.’ (Citation.)” (A.S., supra, 212 Cal.App.4th at p. 209; Kelsey S.,
supra, 1 Cal.4th at p. 849.) The biological father bears the burden to establish the factual
predicate for his rights. (Adoption of O.M. (2008) 169 Cal.App.4th 672, 679-680.) “We
review the trial court’s decision under the substantial evidence test, viewing ‘all factual
matters most favorably to the prevailing party and in support of the judgment, indulging
all reasonable inferences and resolving all conflicts accordingly.’ [Citations.]” (A.S.,
supra, at p. 209.) “We do not evaluate the credibility of witnesses, attempt to resolve
conflicts in the evidence or determine the weight of the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to the” court’s
order and affirm the order even if there is other evidence supporting a contrary finding.
(In re R.V. (2012) 208 Cal.App.4th 837, 843.)
              Michael H., supra, 10 Cal.4th at p. 1060, “clarified that the constitutional
protection of Kelsey S. requires evidence that a natural father ‘promptly came forward
and demonstrated as full a commitment to his parental responsibilities as the biological
mother allowed and the circumstances permitted within a short time after he learned or
reasonably should have learned that the biological mother was pregnant with his child.’
(Italics added.) There, the father learned of the pregnancy in July and beginning in
November made ‘impressive’ efforts to assume his parental role, including seeking legal
advice, contacting the media, requesting assistance from local political figures,
researching the law himself, filing a custody petition in Arizona (where he and the
mother lived when they were together and the baby was conceived) before the child was
born. [Citation.] In early March, he found an attorney who would take his case free, the
attorney immediately contacted the prospective adoptive parents and learned the baby
had been born a bit more than a week before, and the father immediately asked for
custody, sent out birth announcements and bought baby clothes and equipment.
[Citation.] However, in the early months of the pregnancy, the father had first suggested

                                             10
abortion, then agreed to adoption and researched agencies with the mother, and until the
date he learned from his attorney that the baby had been born, the father continued to
speak with the mother and the prospective adoptive parents she had committed to as
though he still agreed with the adoption plan. [Citation.]” (A.S., supra, 212 Cal.App.4th
at p. 214.) Michael H. found the biological father’s efforts insufficient to trigger his
Kelsey S. rights. (Ibid.; see Kirkland, et al., Cal. Family Law Practice & Procedure
(2013) ch. 5, § 171.24 [noting that although Michael H. purported to “‘clarify’” Kelsey S.,
it represents a significant retreat from Kelsey S. by stressing the difficulty father’s
ambivalence causes for adoption planning, and while the constitutional standard of
Kelsey S. remains, the bar now has been placed so high that few fathers will ever clear
it].)
              Kelsey S., as explained in Michael H., requires an early, unwavering, and
full commitment by father concerning his nascent parental responsibilities. “‘The unwed
father’s protected interest requires both a biological connection and full parental
responsibility; he must both be a father and behave like one. (Citations.)’” (A.S., supra,
212 Cal.App.4th at p. 205.)
              Here, substantial evidence supports the trial court’s conclusion Brandon fell
short of the Kelsey S. standard. As the trial court noted, the evidence demonstrated
“Brandon had two screens to look at. One was the video games and the other was the
child. And I always thought he – from the evidence, he pushed the wrong key and used
the video games.” Although Brandon may have initially favored the idea of a life with
Brianna and their child, his relationship with Brianna deteriorated not long after she
became pregnant and moved in with his family. The significant facts in this case that
demonstrate Brandon did not fully commit to fathering B.K. include: (1) Brandon
initially appeared despondent about the pregnancy and attempted to conceal the
pregnancy from others because he feared criminal prosecution for unlawful sexual
intercourse with a minor; (2) he failed to tell friends and others outside the family about

                                              11
the pregnancy; (3) he failed to provide more than token financial support of Brianna and
their unborn child nor plan for the child’s future, and failed to pay for prenatal or
pregnancy expenses, baby items or maternity clothes, and did not arrange medical
insurance for the baby, but freely spent money on leisure items; (4) he failed to engage
emotionally with the idea of fatherhood, illustrated by his actions at the baby shower
(inviting no one, disappearing for a long stretch, declining to open any gifts), his sporadic
attendance at obstetrical appointments and dismissive “later babe” response to Brianna’s
text about the baby’s heartbeat; (5) after Brianna moved out, Brandon discussed the
possibility that his grandparents would raise the child along with Heather, he discussed
adoption, and he told Brianna it was “up to” her to make the decision; and (6) he failed to
request to be present for his child’s birth or to meet with the adoptive parents. (See In re
Ariel H. (1999) 73 Cal.App.4th 70 [biological father continued to spend time with his
friends after he learned that his girlfriend was pregnant, spent his money on compact
discs instead of using it to help defray pregnancy costs, and never sought to visit his
child].)
              Arguably the most significant of the above facts is that Brandon led
Brianna to believe adoption was an option after she moved out. Brianna testified she
mentioned to Brandon on several occasions she was planning to place the baby for
adoption and Brandon did not object. He did not stay in contact with her for
approximately three weeks before the birth and did not come to the hospital, which
supported her belief he agreed to the adoption. As Michael H. noted, If an unwed father
is permitted to ignore his parental role during pregnancy but claim it after birth, it will
often be very difficult to know with certainty whether he will be able to successfully
contest an adoption until after the child is born. This uncertainty could well dissuade
prospective adoptive parents from attempting to adopt the children of unwed mothers
who . . . have chosen for whatever reason not to keep their child and raise it themselves.
And that result would frustrate the state’s clear interest in encouraging such adoptions

                                              12
and providing stable homes for children. (Citations.) The state’s interest in this matter is
particularly important in light of the large number of children born to unwed parents . . . .
(Citations.)” (Michael H., supra, 10 Cal.4th at p. 1056.) “[A]n adopted child may suffer
emotional damage if the unwed father conceals his objection to a third party adoption
during pregnancy and the adoptive parents take custody at birth in reliance on the unwed
father’s apparent consent, but the unwed father then initiates often lengthy legal
proceedings after birth in an effort to derail the adoption and remove the child from the
adoptive parents’ custody. If such an unwed father is allowed to prevail after perhaps
years of litigation, during which time the child will likely come to see the adoptive
parents as his ‘true’ parents, the resulting disruption in familial relationships and living
arrangements can have a very damaging impact on the child’s psychological growth and
development.” (Id. at p. 1056-1057.)
              Although Brandon presented evidence supporting his claim he committed
to parenting B.K., we may not “revisit [the trial court’s] determinations and refocus
through [Brandon’s] lens. . . . The question is whether the facts [viewed in a light most
favorable to the judgment] measured up against the Kelsey S. and Michael H. standards
and demonstrated a parental relationship entitled to protection under the federal
Constitution. The court was required to determine whether [he] took prompt action
towards assuming responsibility from the time he knew of the pregnancy. We find no
error in the court’s conclusion that [Brandon] fell short of the mark.” (Adoption of Arthur
M., supra, 149 Cal.App.4th at p. 721.)
              Finally, Brandon’s complaint Kelsey S. and Michael H. set the bar too high
for a biological father is misdirected. We are bound by precedent established by our
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
              The record viewed most favorably to the judgment reflects Brandon was
ambivalent and not fully committed to the idea of fatherhood. The trial court did not err
in terminating his parental rights and freeing B.K. for adoption.

                                              13
                                      III
                                 DISPOSITION
          The judgment is affirmed.




                                            ARONSON, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



BEDSWORTH, J.




                                      14
