In re Nikolas G. CA1/1 ( 2016 )

Filed 5/27/16 In re Nikolas G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re NIKOLAS G., a Person Coming
Under the Juvenile Court Law.
SAN FRANCISCO HUMAN SERVICES
AGENCY,
Plaintiff and Respondent, A146302
v.
(San Francisco County
DAVID M., Super. Ct. No. JD14-3208)
Defendant and Appellant.
Appellant David M. is the biological father of Nikolas G. but did not come
forward to assert a parental role until the eve of a scheduled hearing to free the minor for
adoption. The juvenile court denied appellant’s request to be elevated to the status of a
presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) and
terminated his parental rights. In affirming the order, we reject appellant’s arguments
that the juvenile court erred in denying him presumed-father status and that appellant
received inadequate notice of dependency proceedings.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
S.P. (mother) got married in February 2013. Her husband was incarcerated later
that year, and during his incarceration, from around August to November 2013, mother
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was involved in a relationship with appellant. According to appellant, he saw mother
about once a month during this period, and mother helped appellant move from Redwood
City to Corning. He described their relationship as “brief and casual,” whereas mother
apparently contended they spent longer periods of time together in Corning. Appellant
claimed he did not have mother’s contact information and that she initiated contacts
during this time, whereas mother stated that they both had phones “and his phone number
was in my phone, and my phone number was in his phone.” Mother became pregnant
with Nikolas during her relationship with appellant.
The circumstances of if and when appellant was told mother was pregnant with his
child are in dispute. According to appellant, mother’s husband contacted him “[a]round
October or November of 2013” and stated “that the mother was pregnant with his [the
husband’s] child and that [appellant] needed to stay away from [mother].” Appellant
contends that “[t]he relationship between [appellant] and the mother thereafter ended.”
Appellant later attested that mother’s husband prevented him (appellant) from
establishing a relationship with Nikolas by “claiming he was [the] father, the mother
stopping all contact with me and I had no way to know where she was, and by her failing
to reveal that I was a potential father once a juvenile dependency case was open and she
knew her husband was not the biological father of Nikolas via paternity testing.”
Mother, by contrast, attested that she informed appellant when she was about one
month pregnant that she was carrying his child. According to mother, appellant “was not
interested in becoming a father to the unborn baby, and did not assist in the pregnancy in
any way.” She also stated that appellant knew her husband could not be the biological
father because he was incarcerated when Nikolas was conceived. Mother returned to her
husband in Redwood City in December 2013 “after [she] was convinced that [appellant]
was not interested in being a father to [her] unborn child.” Appellant himself was
incarcerated from December 2013 to September 2014.
When Nikolas was born in April 2014, he was given the name of mother’s
husband, and the husband’s name was listed on the birth certificate. A few weeks later,
mother’s husband obtained a DNA testing kit from a pharmacy and learned that he was
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not Nikolas’s biological father. He became upset, shook Nikolas’s stroller while the baby
was in it, and tried to suffocate mother with a blanket. Shortly thereafter, mother and her
husband voluntarily surrendered Nikolas, and a social worker with respondent San
Francisco Human Services Agency (Agency) placed the baby in foster care.1
Mother reported she could not provide care for her son and needed “to get her life
together.” She was incarcerated in June 2014. The Agency learned that there was a
history of domestic violence between mother and her husband, and there was a
restraining order directing the husband to stay away from her. Mother told a social
worker that she had experienced “ongoing severe domestic violence” with her husband,
who had on different occasions broken her wrist, nose, and ribs.
The Agency filed a dependency petition on June 16, 2014, when Nikolas was
about six weeks old, and the infant was ordered detained. Nikolas ultimately was placed
with a non-relative extended family member (a friend of mother’s sister) and thrived in
her care.
Mother told the social worker assigned to the case that a man other than her
husband could be Nikolas’s father, but the man was someone she had met when she was
using drugs, and she did not remember his name or know how to contact him.
On October 15, 2014, the Agency filed a declaration of due diligence summarizing
its efforts to search for Nikolas’s father, whose identity was then still unknown. Its
efforts were somewhat limited, given that the Agency did not know the identity of
Nikolas’s biological father. A social worker searched databases but did not learn
anything new about the father’s identity. Another declaration of due diligence was filed
on November 10, 2014, after new database searches were undertaken, but there was no
new information to report.
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Mother’s husband later requested blood or DNA testing to confirm whether he was
Nikolas’s biological father, and the test confirmed that he was not. He was thereafter
relieved of counsel, was not involved in any further legal proceedings, had his parental
rights terminated, and is not a party to this appeal.
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Mother signed a form relinquishing Nikolas, and she named his current caretakers
as prospective adoptive parents. In December 2014, the juvenile court sustained an
amended count in the dependency petition stating that the current identity and
whereabouts of Nikolas’s father were unknown (Welf. & Inst. Code, § 300, subd. (g)2 [no
provision for support]). No reunification services were ordered because mother had
relinquished her parental rights and the alleged father’s identity and whereabouts were
unknown. Instead, the juvenile court scheduled a selection-and-implementation hearing
for April 22, 2015. Before the scheduled hearing, the juvenile court found that the
Agency had exercised due diligence in trying to identify Nikolas’s biological father and
issued an order dispensing with notice to the unknown parent.
Nikolas’s caretakers wanted to adopt him, and the Agency supported the proposed
adoption as Nikolas’s permanent plan. In April 2015, the couple filed a request to be
named Nikolas’s de facto parents, and the juvenile court later granted the request.
According to appellant, mother’s husband told him about a week before the
scheduled selection-and-implementation hearing that he (the husband) had been ruled out
as Nikolas’s biological father and that appellant could be the father. At the time,
appellant was unemployed, was living with his parents on a farm in Corning, and was on
probation for two charges of firearm possession. According to the Agency, appellant’s
girlfriend left multiple voicemails for the social worker assigned to Nikolas’s case,
represented herself as appellant’s wife, and asked for information about dependency
proceedings. The social worker told the girlfriend that she (the social worker) could not
provide appellant or the girlfriend with information (other than to confirm an upcoming
court date) because they were not parties.
Appellant took steps to become involved in dependency proceedings. When the
social worker first met appellant at court on April 22, she asked him why he had not
called her and how he learned that he might be Nikolas’s father, and appellant’s girlfriend
answered for appellant that he was “nervous” and that the person who contacted them
2
All statutory references are to the Welfare and Institutions Code.
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“preferred to remain anonymous.” The social worker described the girlfriend as “very
hostile.” On April 27, the juvenile court granted appellant’s request for a paternity test
(which confirmed he was Nikolas’s biological father), appointed counsel for him, and
continued the scheduled selection-and-implementation hearing to June 3.
Two days before the scheduled continued hearing, appellant filed an objection to
the proposed adoption. In that motion, he asked to be found Nikolas’s presumed father
or, in the alternative, a father under Kelsey S., supra, 1 Cal.4th 816 (“Kelsey S. father”).
He further requested that Nikolas be immediately placed with him or that the court order
reunification services for him. Appellant also filed a motion under section 388 requesting
essentially the same relief: that he be named Nikolas’s presumed father or a “Kelsey S.
father,” that Nikolas be immediately placed in his care, or that he be provided with
reunification services. Later, appellant filed a motion to set aside previous orders and to
return Nikolas’s case to the disposition hearing based on allegations of “defective
notice,” claiming that the Agency did not do enough to learn his identity. The Agency
and the de facto parents opposed all of appellant’s requests. On June 3, the juvenile court
elevated appellant’s status to that of Nikolas’s biological father and continued the matter
a few times in order to consider appellant’s more substantive requests.
Further investigation by the Agency revealed that appellant was arrested multiple
times beginning in 2004 for the use and sale of controlled substances, was convicted in
2005, 2007, 2008, 2010, and 2011 for various misdemeanor and felony drug counts, and
was convicted in 2014 for felony possession of a loaded firearm and sentenced to one
year in jail and three years on probation. Appellant was registered as a gang member,
was with other gang members the last time he was arrested, and recently was found with
clothing that was of the color associated with his gang. Appellant’s probation officer
described appellant as “guarded and closed off” and reported that appellant “does not talk
much when they meet.” The Agency also learned that appellant’s girlfriend had multiple
referrals to child protective services regarding her own two children and had an open case
in Sacramento County in which she had not participated in any services. The Agency had
difficulty further evaluating appellant because he reportedly was resistant to meeting with
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the social worker and refused to participate in a mediation to discuss a possible post-
adoption contract with the prospective adoptive parents.
At the continued hearing on July 29, 2015, the parties’ attorneys briefly argued
their respective positions, but no witnesses testified and no additional evidence was
submitted. The juvenile court denied all of appellant’s requests. It concluded that the
Agency acted reasonably to locate appellant on the information it had and that appellant
“did not come forward for quite a long period of time after he knew or reasonably should
have known there was a great possibility that he’s the biological father of this child.”
The court further denied appellant’s request under section 388, finding there was no
showing of changed circumstances or that the requested change to court orders would be
in Nikolas’s best interest. And the court concluded that father did not qualify as a
Kelsey S. father because “he did not come forward for that significant period of time. I
believe it was close to 18 months once he knew or should have known he had a great
probability of being the father of this child.”
The juvenile court proceeded to the selection-and-implementation hearing and
terminated the parental rights of mother, mother’s husband, and appellant, and it ordered
adoption as Nikolas’s permanent plan.
II.
DISCUSSION
Appellant argues that the juvenile court erred when it denied his request to be
recognized as a Kelsey S. father, but he is mistaken. “ ‘The Uniform Parentage Act
(UPA), Family Code section 7600 et seq., provides the statutory framework for judicial
determinations of parentage, and governs private adoptions, paternity and custody
disputes, and dependency proceedings.’ [Citation.] ‘The UPA distinguishes between
“alleged,” “biological,” and “presumed” fathers.’ [Citation.] ‘Presumed father status
ranks highest.’ [Citation.] ‘[O]nly a presumed . . . father is a “parent” entitled to receive
reunification services under [Welfare and Institutions Code] section 361.5.’ [Citation.]”
(In re D.A. (2012) 204 Cal.App.4th 811, 824.)
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Under Kelsey S., supra, 1 Cal.4th 816, due process requires a biological father to
be considered a presumed father if he satisfies certain requirements. (Id. at p. 849; In re
D.S. (2014) 230 Cal.App.4th 1238, 1244 [Kelsey S. decided in adoption context and later
extended to dependency proceedings].) Courts look to whether the father “promptly
comes forward and demonstrates a full commitment to his parental responsibilities—
emotional, financial, and otherwise,” and they should consider “[t]he father’s conduct
both before and after the child’s birth.” (Kelsey S., at p. 849, original italics.) “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.” (Ibid.) The burden is on the biological father who
asserts Kelsey S. status to establish the factual basis for those rights, and we review the
juvenile court’s factual findings for substantial evidence. (Adoption of O.M. (2008) 169
Cal.App.4th 672, 679-680.)
In arguing that he qualifies as a Kelsey S. father, appellant focuses on the steps he
took after he was told in April 2015 he might be Nikolas’s father to become part of his
son’s life. A fair reading of the record indicates it was actually appellant’s girlfriend who
was more motivated to become involved in dependency proceedings. But even putting
that aside, mother’s declaration shows that before Nikolas was born mother told appellant
that he was the baby’s father, yet appellant showed no interest and did not help during her
pregnancy in any way. It was only after mother was convinced that appellant was not
interested in being a father that mother returned to her husband.
Appellant acknowledges that if mother’s statements are true, then he does not
qualify as a Kelsey S. father. While not directly contradicting mother’s version of events,
he argues that the facts in mother’s declaration “are not reasonable, credible, or of solid
value,” because their truth cannot be reconciled with the fact she told her husband
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throughout her pregnancy and for several weeks after Nikolas was born that he (the
husband) was the biological father. But we are hardly surprised that mother would be
less than forthcoming with a man with whom she had a history of “ongoing severe
domestic violence.” And while it is true (and unfortunate) that mother apparently also
withheld information from the Agency about appellant’s identity, there is nonetheless
substantial evidence to support the implied findings that appellant knew mother had been
pregnant with a child who she had said was his, had mother’s contact information, and
nonetheless did not timely come forward to assume parental responsibilities. (Kelsey S.,
supra, 1 Cal.4th at p. 849.)
This case is readily distinguishable from In re D.A., supra, 204 Cal.App.4th 811,
upon which appellant relies, because there the biological father took reasonable steps to
assume a parental role by taking the mother to prenatal medical appointments, offering to
help with any pregnancy-related expenses, repeatedly trying to reach the mother by
calling a maternal aunt after mother broke off contact, begging to meet his son after he
was born, and requesting a paternity test and visitation after he did meet him. (Id. at
pp. 814-815, 824-825.) Here, appellant took no such similar steps to assume a parental
role after mother broke off contact with him (something she said she did only after
appellant stated he was not interested in being a father).
We also reject appellant’s arguments regarding his notice of the proceedings.
(§ 316.2, subd. (b) [alleged fathers entitled to notice that child is subject to dependency
proceedings].) According to appellant, the Agency did not do enough to identify him and
should have asked mother’s husband to identify potential biological fathers. He goes so
far as to claim that mother’s husband “was the most likely source of information as to
who might have fathered a child with his wife, during their marriage.” (Italics added.)
This is not a reasonable reading of the record, given that the husband apparently was
incarcerated during most of mother’s relationship with appellant, the husband believed he
himself was the biological father until genetic testing proved otherwise, and mother told a
social worker that she could not remember the name of a possible father because she was
on drugs when she was with him. Under the circumstances known to the Agency,
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husband did not appear to be a likely—let alone the “most likely”—person to provide
information about appellant’s identity, even though it was later revealed that he did in
fact have this information. The cases upon which appellant relies in arguing he received
inadequate notice of the dependency proceedings are easily distinguishable, because they
involved situations where the social services agencies knew the identity of the parents but
failed to take reasonable steps to learn their whereabouts. (In re Arlyne A. (2000) 85
Cal.App.4th 591, 593, 598-599 [social services agency knew father’s identity but ignored
timely and correct information about his whereabouts and failed to take direct steps to
reach him]; In re DeJohn B. (2000) 84 Cal.App.4th 100, 103, 108-109 [agency asked
father about mother’s whereabouts but did not ask for information about mother’s
relatives, who knew how to contact mother].)
Finally, we reject appellant’s argument that the juvenile court violated his
constitutional rights by denying his section 388 petition without a finding of parental
unfitness. He was entitled to such a determination only if he was found to be a Kelsey S.
father (1 Cal.4th at p. 849), and we already have concluded that he did not qualify as one.
III.
DISPOSITION
The juvenile court’s order terminating appellant’s parental rights is affirmed.
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_________________________
Humes, P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
In re Nikolas G. (A146302)
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