Opinion
G037431
4-30-2007
Adoption of LOGAN M., a Minor. MATTHEW M. et al., Plaintiffs and Respondents, v. ERIK V., Defendant and Appellant.
Ellen L. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant. Law Office of Gradstein & Gorman, Marc Gradstein, Jane A. Gorman, and Seth F. Gorman for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
Siara H. and Jesus Erik V. (Erik) are the unwed biological parents of Logan M. Siara placed Logan with Matthew and Christina M. under an independent adoption agreement at the childs birth, and they petitioned to adopt her. Erik filed a paternity action; in response, the M.s filed a petition to determine his parental rights and the necessity for his consent to the adoption. The court terminated Eriks parental rights, finding he had not achieved the status of a Kelsey S. father and it was in the childs best interests to let the adoption proceed. Erik appeals.
Adoption of Kelsey S. (1992) 1 Cal.4th 816.
FACTS
Siara, 17, and Erik, 21, started living together in July or August 2004 after Siara ran away from home. Both of them engaged in methamphetamine use. The couple lived first with Eriks grandmother, then with his cousin; they paid no rent. In February 2005, Logan was conceived, which the couple suspected in March and confirmed in April. Erik was not working, but paid for incidentals with "a little bit of money [I] saved up, but mostly it was my mom and dad." He had about three thousand dollars saved.
In April, Siara was arrested for shoplifting at Wal-Mart and Erik was arrested for statutory rape. Both were incarcerated. Erik was released after four or five days, and Siara was released in June. After Siara was released, she moved in with her mother.
In July 2005, an attorney representing Siara and the prospective adoptive parents prepared papers initiating the adoption process, including informing Erik how and where he should file an objection if he did not want the adoption to go forward. After the papers were served on Erik, he contacted the attorney, who explained the options to Erik. Erik told the attorney "he was not for adoption but he realized he could do nothing against it." Two days later, Erik called the attorney back and said "he had spoken to another attorney and he realized that . . . I did need his consent . . . ." The attorney heard nothing further from Erik until he filed the paternity action.
Erik moved to New York to live with his aunt in August. He returned to Southern California in November because Siara told him the baby was due then. He was not present at the babys birth, but he testified he had tried to find out where Siara was so he could be. At that point, Siara and her mother were refusing contact with him. Logan was born in November 2005 and placed immediately with the M.s. They filed a petition for adoption on December 1; Erik filed a paternity action on December 8. The M.s filed a petition to determine Eriks parental rights on December 16.
The cases were consolidated and went to trial in June 2006. Siara testified she had suspected she was pregnant in March because she was "vomiting, really, really sick." She asked Erik to take her to the doctor, but he delayed about two weeks until his cousin and her husband convinced him by "bugging him." He took her to a clinic but refused to let her stay when he discovered the wait would be several hours. Subsequently, he took her to a doctor near her mothers house; her mother met her there and paid for the visit. Erik refused to go in with her. Siara testified Erik neither gave nor offered to give her any financial support, either before or after Logans birth.
Siara also testified Erik possessed "multiple" guns "because he said that people were after him, that he has got to watch himself." He broke his leg "jumping over a wall" because "he got shot up [at his friends house], his car was parked on the other side of the wall so he jumped it." Erik was violent sometimes, yelling and cursing at her, pushing her out of the car and beating her "during the last four months that [they] were living together."
After Siara was released from jail and moved back to her mothers house, she wanted to talk to Eric. He called often, even from New York. He told Siara she should "give [him] the kid" and his aunt would raise her. The calls became harassing, however, and she stopped answering the phone. "He would call me and say, like, mean things to me, . . . telling me that I probably had sex with his uncle or the baby is not his." He called her "every cuss word in the book. Fuck you, whore, slut, cunt." When asked what Erik wanted when he called, Siara explained, "The conversation never went anywhere. He never asked about how I was doing, never asked about the pregnancy or any of that. He just called to call me names and stuff . . . ." Siaras mother testified she listened in on about six conversations and heard him call Siara abusive names.
The trial court found that Erik had the ability to pay some of the pregnancy and birth expenses, but did not do so. "He didnt even pay the rent. The food was provided by the cousins, . . . and they werent asking anything in return. [¶] He says he had a bank account but he did not use it. [¶] . . . There was no pre-natal care that was provided for her during the time they were together. [¶] . . . [¶] The father did a lot of things as far as offering. . . . There were good intentions there, but they are not carried out. [¶] He is uninvolved from April `04 to December of 2005. [¶] . . . The time to do something about it was earlier. Could have got a job. He says he had a broken leg. . . . It didnt take from April `04 to December `05 to get a job here. And thats . . . about a year and a half . . . . [¶] . . . [¶] I suspect if . . . he [had] custody of the child, that its gonna be the relatives that are gonna bring up the child and not he. I dont think he is mature enough, as I gather, based upon the actions that he had with the mother here, to undertake such a job. [¶] [A]fter [Siara] was at home, . . . there were lots of calls," but "they were not supportive."
The trial court concluded that Erik "has not achieved the status of a presumed father as contemplated by Kelsey S. and Michael H. [(1995) 10 Cal.4th 1043] and the other cases that have been decided by the court in the interim." The court then asked counsel if they wanted "to proceed with what is in the best interest of the child" as provided in "[t]he second half of Family Code section [7664] . . . ." Counsel for the minor, for Erik, and for Siara submitted. Without taking any more evidence, the trial court found "it is in the best interest of the child that an adoption be allowed to proceed" and "consent of the natural father, Erik V[.], is not required for this adoption, and his rights . . . to the child are hereby terminated." The written "Order after Hearing," which was signed by the trial court and "approved as to form and content" by counsel for the minor, for Erik, and for Siara, recited that "the court considered the factors set forth in Family Code § 7664, including but not limited to `the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child."
DISCUSSION
Sufficient evidence supports the finding that Erik was not a Kelsey S. father.
An unwed natural father who is not a presumed father (Fam. Code, § 7611) has a statutory right to block a third party adoption of his child only if he proves it is in the childs best interests that the adoption not proceed. (§ 7664, subd. (b); Adoption of Alexander M. (2001) 94 Cal.App.4th 430, 438.) A presumed father, like the natural mother, must give his consent to a third party adoption. (§ 8604, subd. (a).) "Under section 7611, a man who has neither legally married nor attempted to legally marry the mother of his child cannot become a presumed father unless he both "receives the child into his home and openly holds out the child as his natural child." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
All statutory references are to the Family Code.
An unwed natural father who is not a presumed father may, however, have a constitutional right to block an adoption if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities — emotional, financial, and otherwise. . . ." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.) Such a father is known as a "Kelsey S. father."
In Kelsey S., the unwed father objected to the adoption of his daughter and expressed his desire to raise her himself. Notwithstanding, the mother gave custody of their daughter to the prospective adoptive parents and refused to allow the father to have any contact with her, thus effectively preventing the father from becoming "presumed" under the statute. (1 Cal.4th at pp. 821-822.) The court found 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 childs 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 childs best interest. 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. . . . [W]hen the father has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother." (Id. at p. 849.)
A determination of whether a father has demonstrated a commitment to his child involves consideration of his conduct both before and after the birth. "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 fathers 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." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849.) Although the fathers conduct both before and after the birth is important, he cannot ignore his parental role before the birth and claim it afterwards. (Adoption of Michael H., supra, 10 Cal.4th at p. 1056.)
Erik contends he did all that he could to assert his parental responsibilities in light of the circumstances created by Siara and her mother. But the trial court found otherwise, and these findings are supported by substantial evidence. (Adoption of Michael H., supra, 10 Cal.4th at p. 1064 (conc. & dis. opn. of Kennard, J.).) Although the evidence presented by Siara was often in sharp contrast with that presented by Erik, questions of credibility are for the trial court, and we will not reweigh the facts. (Alinda V. v. Alfredo V. (1981) 125 Cal.App.3d 98, 102.)
Erik did not provide Siara with financial help, although he had savings of several thousand dollars. Erik testified Siara refused his offers of financial help. But Siara denied that, testifying he never offered her money and she never declined any offers of help.
Neither did Erik provide emotional support to Siara during the pregnancy. Before she was arrested in April, Erik often beat her. Although the evidence established the two were in frequent contact after she was released, during the latter part of the pregnancy Erik became abusive and mean. He never asked about the baby.
Eriks conduct belies his current claim that he wanted to make a home for Logan. He did not obtain a job until one month after Logan was born, and the trial court found his excuses for the delay unconvincing. He took no parenting classes until one month before trial. He told Siara if she gave him the baby, his aunt would raise her.
Furthermore, Erik failed to promptly assert his parental rights. Although he may have had reason to suspect earlier, by July he knew Siara intended to place the child for adoption. He took no legal action until December, over four months later.
Sufficient evidence supports the conclusion that terminating Eriks parental rights is in the best interest of the child.
Erik next contends there is insufficient evidence to support the trial courts finding that it was in Logans best interest to terminate Eriks parental rights and allow the adoption to proceed. He argues the court erred by asking counsel if they wanted to submit on the question of best interests when it should have taken evidence on the factors set forth in section 7664.
Section 7664 provides that the trial court shall determine whether it is in the best interest of the child of an unwed natural father "that the father retain his parental rights, or that an adoption of the child be allowed to proceed. The court, in making that determination, may consider all relevant evidence, including the efforts made by the father to obtain custody, the age and prior placement of the child, and the effects of a change of placement on the child. If the court finds that . . . it is in the best interest of the child that the father should be allowed to retain his parental rights, it shall order that his consent is necessary for an adoption. If the court finds that it is in the childs best interest that an adoption be allowed to proceed, it shall order that that persons consent is not required for an adoption. This finding terminates all parental rights and responsibilities with respect to the child." (§ 7664, subd. (b).)
Erik had the burden of proof that it would be in Logans best interest to preserve his parental rights. (Adoption of Kelsey S., supra, 1 Cal.4th at p. 825; Adoption of Michael H., supra, 10 Cal.4th at pp. 1051-1052; Adoption of Alexander M., supra, 94 Cal.App.4th at p. 441.) He was not forced or coerced to submit on the issue; he cannot now fault the trial court for failing to accept additional evidence if he did not offer it.
The record shows Erik did not meet his burden of proof. Erik admitted he was involved in drug use. After Logan was born, Erik was arrested and convicted of a weapons charge. At the time of trial he was employed "9:00 to 5:00," but he presented no evidence from which the trial court could determine his earnings, stability, or benefits.
The statutory factors also weighed against preserving Eriks parental rights. Eriks attempts to obtain custody of Logan, as discussed above, were feeble at best. Logan, seven months old at the time of trial, had been placed with the M.s since her birth. And Erik presented no evidence to counter the widely-held belief that removing a child of that age from the only parents she had ever known would cause her distress. (See, e.g., Michael U. v. Jaime B. (1985) 39 Cal.3d 787, 795, superseded by statute on another ground as stated in In re Zacharia D. (1993) 6 Cal.4th 435, 448; In re Daniele G. (2001) 87 Cal.App.4th 1392, 1398-1399.)
DISPOSITION
The judgment terminating Erik V.s parental rights is affirmed. Respondents are entitled to costs on appeal.
We Concur:
OLEARY, J.
ARONSON, J.