Adoption of Baby Boy W. ( 2014 )

Filed 12/15/14
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
Adoption of BABY BOY W., a Minor.
GARRETT J., D066101
Plaintiff and Respondent,
(Super. Ct. No. A59385)
v.
A.H. et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of San Diego County, David B.
Oberholtzer, Judge. Affirmed.
Law Offices of Ted R. Youmans, Ted R. Youmans; Leslie A. Barry for
Defendants and Appellants A.H. and M.H.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and
Appellant Jacqueline W.
A.C. Howard Law and Anna C. Howard for Plaintiff and Respondent Garrett J.
A biological father who does not qualify as a presumed father under Family Code
section 76111 generally does not have statutory standing to block the adoption of his
child unless he proves that it is in the child's best interests that the adoption not proceed.
(Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.); Adoption of Michael H. (1995)
10 Cal.4th 1043, 1052 (Michael H.).) Under Kelsey S., however, the father has a
constitutional right to establish himself as a quasi-presumed or Kelsey S. father if he
"promptly comes forward and demonstrates a full commitment to his parental
responsibilities—emotional, financial, and otherwise . . . ." (Kelsey S., supra, at p. 849;
In re M.C. (2011) 195 Cal.App.4th 197, 213.)
Jacqueline W. and Garrett J. are the unwed biological parents of Baby Boy W.
When Jacqueline discovered that she was pregnant, she knew right away that Garrett was
Baby Boy W.'s biological father, but she denied Garrett's requests that she sign a
voluntary declaration of paternity that would have established Garrett as Baby Boy W.'s
statutory presumed father. She then sought to have A.H. and M.H. (the Hs) adopt Baby
Boy W. at birth, despite the fact that Garrett had repeatedly stated that he wanted to
raise Baby Boy W. himself. Garrett filed a petition to establish his paternity, and
Jacqueline and the Hs (collectively, appellants) filed a petition to terminate his parental
rights. The trial court found that Garrett established his paternity rights under Kelsey S.,
denied appellants' petition, and entered judgment in Garrett's favor, thereby halting the
1 All further statutory references are to the Family Code.
2
Hs' adoption of Baby Boy W. The court set further proceedings to address custody of
Baby Boy W.
Appellants contend that (1) the trial court misunderstood and misapplied Kelsey S.,
and (2) there is not sufficient evidence to support the trial court's Kelsey S. findings. We
disagree in both respects and affirm the judgment.
We have not reached this decision lightly. We understand that the consequences
of our decision, i.e., halting the Hs' adoption of Baby Boy W., will undoubtedly be
heartbreaking for the Hs, who have had custody of Baby Boy W. since the day after his
birth. We also realize that removing Baby Boy W. from the Hs and placing him with
Garrett and/or Jacqueline will require a period of adjustment for Baby Boy W. However,
those emotional considerations, precipitated by Jacqueline's unilateral decision that
adoption was in Baby Boy W.'s best interests, do not override Garrett's constitutional
right to establish a parental relationship with Baby Boy W.
FACTUAL AND PROCEDURAL BACKRGOUND2
Jacqueline and Garrett met at a party in the summer of 2012 when they were both
students at the University of Alabama. Within weeks, they were dating exclusively. 3 On
2 Although we ordinarily view " 'all factual matters most favorably to the prevailing
party and in support of the judgment' " (Adoption of A.S. (2012) 212 Cal.App.4th 188,
209), we are mindful that the trial court found Garrett's testimony "not reliable" in some
respects. As the trial court explained, Garrett's "embellishments and excuses over three
days of testimony eventually convinced the court he was not reliable. The court is not
suggesting it believed none of [Garrett's] testimony—it relied on much of it to reach a
decision. Nevertheless, when others contradicted him, the court generally found that
other testimony more convincing."
3
April 23, 2013, Jacqueline told Garrett via text message that she thought she might be
pregnant. Jacqueline went to Garrett's house and took two pregnancy tests, both of which
yielded positive results. The next day, Garrett went with Jacqueline to the Tuscaloosa
Pregnancy Center, where medical staff confirmed Jacqueline's pregnancy. Garrett stood
with Jacqueline as she received her results. Jacqueline testified that Garrett was
"relatively" supportive during this time; pregnancy center staff noted that Garrett "was
very supportive."
The day after they went to the pregnancy center, Jacqueline found a text message
on Garrett's phone that he had sent to a friend the prior weekend. The message included
a photograph of Garrett hugging another girl and accompanying text suggesting that he
and the girl in the photograph had been intimate. Jacqueline was very upset by the
message. Garrett downplayed it as a joke.
Over the following days, Garrett and Jacqueline had extensive discussions about
the pregnancy, living arrangements, how they would complete school, how they would
pay all of the expenses associated with having a child, and whether they should live in
San Diego near Jacqueline's family, or in Alabama near Garrett's family, who live in
Georgia. Garrett testified that Jacqueline and he did not discuss abortion or adoption as
options during those conversations. Garrett also testified that he asked Jacqueline to
marry him, but the trial court did not believe him.
3 The trial court found that Garrett "was not as exclusive," which created "tension in
the relationship." The court further found that Garrett "unconvincingly denied any
indiscretions during his testimony, which began the erosion of his credibility."
4
Jacqueline and Garrett agreed that they would keep the news of her pregnancy
relatively private, telling only their families and very few close friends. Garrett was with
Jacqueline when she called her parents to tell them. Jacqueline's father, Norman, was out
of town on business at the time, so Jacqueline initially told only her mother, Grace.
Garrett also spoke with Grace during that call. Jacqueline and Garrett each spoke with
Norman a few days later. Jacqueline and Norman both characterized Garrett as
supportive during this time.
At the end of April 2013, Jacqueline went with Garrett to Atlanta for four or five
days to meet his parents and brothers and to do some sightseeing. Garrett had already
told his brothers about the pregnancy, but did not tell his parents until a few days after the
trip ended. According to Jacqueline, "[h]e wanted to make sure it was official when
[Jacqueline] went to the first doctor's appointment. He didn't want to freak anyone out
early."
After the Atlanta trip, Jacqueline returned to San Diego on May 5 and then
continued on to Italy in mid-May for a prearranged study-abroad program. Jacqueline
and Garrett communicated daily while she was in Italy. When Jacqueline complained of
itchy skin, Garrett researched potential remedies.
Jacqueline returned to San Diego in late June 2013. Around the same time,
Garrett changed his college major to one that would allow him to take online courses
remotely in the fall semester.
5
On July 1, Garrett flew to San Diego to visit Jacqueline and her family.
Jacqueline stayed with her parents in their home and Garrett stayed in their nearby beach
house. Garrett and Jacqueline spent every day together, visited with Jacqueline's
extended family and friends, and went sightseeing. Garrett acknowledged to Jacqueline's
family that he was Baby Boy W.'s father. Garrett gave Jacqueline back rubs and, on one
occasion when she suffered stomach cramps while sightseeing, moved her inside a cool
hotel and got some ice water for her. According to Garrett, during this visit he offered
his financial support, telling Jacqueline and her parents to let him know if there was
anything he could do to help.4 Jacqueline's parents responded that it wasn't necessary;
Jacqueline was covered on their health insurance, and Grace worked for Jacqueline's
doctor and was able to receive health care at a discounted rate. Garrett testified that he
also looked into whether Jacqueline would qualify for state assistance in Alabama.
During the July visit, Garrett spoke with Norman about plans for Baby Boy W.
According to Garrett, Norman assumed that Garrett was eventually going to try to take
Baby Boy W. back to Alabama, even though Garrett was exploring the possibility of
relocating to San Diego. While in San Diego, Garrett contacted a rental office about
potential housing and also contacted connections from Alabama about potential work
opportunities in San Diego. According to Garrett, Norman expressed his view that
Garrett was not mature enough to raise a child and that adoption was the best plan.
Garrett responded that he would never agree to an adoption.
4 Jacqueline and Norman denied this.
6
Also during the July visit, Garrett had a one-on-one lunch with Michael M., a
friend of Jacqueline's family who considered himself a "big brother figure" to Jacqueline.
Garrett and Michael discussed common life experiences and Michael questioned Garrett
regarding his views on the pregnancy and fatherhood. Michael attempted to convey to
Garrett what being a father was like so that Garrett would "understand that he was faced
with [a] decision that was life-altering . . . ." Michael testified that based on his
relationship with Garrett, "as short as that was, I felt he confided and trusted in me. I do
know he felt there was obligation with raising the child. There is no doubt about that."
Michael was also "impressed" with Garrett's level of concern for Jacqueline; it was
apparent "he cared a lot about [Jacqueline]."
Michael asked Garret, "What is your perfect situation? If you could have it any
way, what would that be?" Garrett's response "was very clear, 'I would have [Jacqueline]
move to Tuscaloosa. We would have the baby there. I would essentially do school
online and [Jacqueline] would finish school.' " After Michael "paint[ed] a picture" of
what that would be like financially and emotionally, Garrett acknowledged his "perfect"
option was unrealistic, and offered as a fallback plan moving to Georgia to be near his
family and having his mother help him raise Baby Boy W.
During Garrett's visit, Jacqueline received a text message from a friend in
Alabama saying that she had heard through the grapevine that Jacqueline was pregnant.
Despite the fact that Jacqueline had told one friend about the pregnancy who, in turn, had
told another, Jacqueline attributed the root of the "grapevine" to Garrett's having told his
7
best friend, "who is known for getting drunk and telling everyone absolutely anything
that they choose to know." Jacqueline was upset that word of her pregnancy was
spreading.
The night before Garrett left San Diego, he and Jacqueline discussed their
relationship and the possibility of adoption. According to Jacqueline, she emphasized
that it was important to her that Baby Boy W. be raised in a two-parent home, "but
[Garrett] made it obvious there would not be a commitment." Jacqueline testified that
she told Garrett, "I can't support a relationship any more if the other half isn't helping. He
took that as we should be broken up, because I can't support a relationship because I am
three, four months pregnant then." Garrett testified that Jacqueline gave him an
ultimatum: " 'You are going to have to understand this adoption will happen or I can't
support our relationship.' " Garrett left his watch as a gift for Jacqueline and returned to
Alabama.
Jacqueline and Garrett continued to communicate daily via telephone, text
messages, and e-mail. Garrett also communicated with Norman, who had asked Garrett
to prepare a financial plan showing how he could provide for Baby Boy W. Garrett
prepared a plan and sent it to Norman, who considered the plan "basically useless."
Jacqueline and Garrett's communications with each other became more brief and
their conversations turned "strain[ed]" and "hostile." During a telephone conversation in
mid-July, Garrett became angry with Jacqueline regarding her expressed desire that their
baby be adopted. Garrett yelled that she "was making a bad decision" that she "was
8
going to regret . . . for the rest of [her] life, that [she] could suck it up and [she] could do
it . . . ." Norman overheard the argument as he was driving Jacqueline home from her
job. Garrett later sent Jacqueline a text message stating, "you cuss me out every time we
talk," to which she responded, "Not 'every time.' But you still some how [sic] think we
should be together."
An exchange of text messages on July 28 demonstrates the tension that
Jacqueline's decision to relinquish Baby Boy W. for adoption had created between her
and Garrett. Jacqueline wrote, "Garrett I feel like I'm just wondering [sic] around waiting
for an answer. All I want is someone to hear what I've said because no one has bothered
to listen to that. I just want this to all go away—it's like a bad dream and every morning I
wake up and it's still there. I'm in pain Garrett[,] I'm so sad and all I want is for this to be
over. It's constant[,] it never goes away. I know you're a great person and you have a lot
of integrity but at this point I need to be supported in my decision. I can't even tell you
how hard this is for me. I need support in the right places now. I want this pain to go
away[,] its [sic] constant and never leaves."
Garrett responded, "I understand. I hurt everyday too. Everything is turned
upside down and nothing makes sence [sic]. I understand and I really get how you feel. I
know why you want to make this go away and I really understand some parts of what
you're going through because I am going through some of the same things. I'm worried
about you and I'm worried about all the things that are going to change. I'm upset cause
now I don't even have the love of my life anymore when all I wanted to do was to avoid
9
making a permanent decision during temporary times of pain. You say things to me that
ring in my head when all that I used to think about was good memories of you, and things
[I] like[d] doing with you. Even though you've told me enough times you don't wanna be
with me. I still love you more than [I'll] ever be able to love anyone else. I'm on your
side and you don't need to push me away."
Jacqueline replied, "I know that you hurt Garrett[,] you've made that very clear but
please understand that every time you disagree with me and tell me I'm making a bad
decision it pushes me away farther. Adoption is a better 'permanent solution' for me
because I can't be a mother and feel this pain. I've told you that too many times and at
this point I'm aware that its [sic] beyond comprehension for you to understand how much
I hurt because you're not going through it. I respect you very much for telling me you
love me throughout this but it is very hard for me to listen to you say you understand how
much I hurt and you're worried about me when I'm still not supported. Like I said—I
know you can't understand what I'm going through by [sic] please try and understand
why my decision has been made. I'm not fit to be a mother and having a baby will not fix
me or make me feel better. I'm doing the best I can and trying to ignore the pain but it
only hurts more when this is being said back to me."
In August 2013, Garrett sent Jacqueline flowers on her birthday. Norman traveled
to Tuscaloosa to pack up Jacqueline's belongings because she would not be returning to
school. Garrett took the day off work and helped Norman pack Jacqueline's things. At
the end of the day, they went to dinner together. Garrett characterized the dinner as
10
uncomfortable, claiming that Norman said, "Do you know if I would have had the
chance, I would have pulled a gun and shot you by now?"5 Garrett testified that Norman
gave a long list of reasons why Garrett was wrong for not going along with Jacqueline's
plan of adoption and for making her fight with him over it.
On August 20, Jacqueline sent Garrett a text message asking, "Hey I was
wondering if you would be more willing to consider adoption if we could find a couple in
Alabama or Georgia?" Garrett responded, "It's not really about where the family would
be. It's about wanting to directly raise my child with the same values given to me by my
parents and my family. I see no valid argument to give our child away. I can endure any
challenge For [sic] my child. Family is everything and this child is family. It will not be
placed into the home of a stranger."
Jacqueline was working a sales job at Nordstrom, working Sundays at a small cafe
where she had worked during high school, and also watching Michael and his wife's
child. Jacqueline testified that she worked because "I wanted something to keep my mind
off of everything and because I needed money and needed some sort of income." She
received emotional support from her parents and from a life coach, whom she paid $120
per session.
5 Norman denied ever threatening to shoot Garrett. However, he admitted having
said, "I now understand why father[s] and shotguns cause shotgun weddings, or
something . . . to that effect."
11
Garrett continued his college studies, read several parenting books, and established
a full nursery at his parents' house. He taught guitar in a music store and played in
several bands, earning approximately $600 to $700 per month.
On or about August 21, Garrett was at a bar with some friends, saw a female
acquaintance there, and kissed her goodbye when he left. Jacqueline received a text
message that said "Garrett is making out at the bar with some blonde girl." Jacqueline
was "devastated." Garrett subsequently wrote a letter to Jacqueline, apologizing for the
incident. He later attended a formal ball with the girl from the bar, but claimed that they
had gone just as friends.
Jacqueline stopped responding to Garrett's text messages in early September.
Around that time, she interviewed the Hs as prospective adoptive parents for Baby
Boy W. Jacqueline advised the Hs that Garrett was opposed to adoption. Jacqueline
testified that even at that point in time, she would have married Garrett and raised Baby
Boy W. together—if he had only proposed.6
On September 17, Garrett filed a paternity action in San Diego. According to
Jacqueline, she had not decided to put Baby Boy W. up for adoption until after the
kissing incident and Garrett's filing of the paternity action. She later filed a petition to
terminate Garrett's parental rights and sought to consolidate his petition with hers.
Garrett and Jacqueline effectively stopped communicating, other than through counsel.
6 Jacqueline testified that she and Garrett had previously discussed the possibility of
marriage, that she knew he was willing to marry her, but that she never pressed the issue
because she "shouldn't have to tell someone I want to get married."
12
At a November 5 hearing, the court accepted the parties' stipulation for DNA paternity
testing upon Baby Boy W.'s birth, consolidated the actions, and stayed further
proceedings on Garrett's petition pending a final determination on Jacqueline's petition.
Disappointed with the trial court's stay of proceedings on his petition, Garrett
created an online petition through the Change.org Web site urging "California law
makers" to "[a]llow unmarried fathers to be able to have rights in determining the futures
of their biological children," and "specifically in halting an unwanted adoption." He also
created a related page on the social media Web site Facebook asking readers to "Help me
Keep my Child From Being put up for Adoption." Garrett's online posts did not identify
Jacqueline by name, but she believed that the posts revealed enough demographic
information about her that people who knew her would know to whom Garrett was
referring. In the trial court's words, "many crazies and malcontents" responded to
Garret's social media postings; Garrett did not disclaim them. To the contrary, he
forwarded to Jacqueline an e-mail that he received from a woman who said that she
regretted having given up her child for adoption and offered to talk to Jacqueline to
encourage her not to go through with the adoption. Jacqueline was devastated when she
read the e-mail. She cried so hard that her mother was afraid that she would go into
labor.7 Although Garrett testified that he thought that sending the e-mail to Jacqueline
was supportive, the trial court found that "[i]t was nothing of the sort, of course, and no
sensitive person would have said it was." Garrett also gave a radio interview that was
7 Jacqueline had a high-risk pregnancy due to placenta previa.
13
broadcast in San Diego. Jacqueline was upset by Garrett's social media campaign and the
responses that it elicited. Norman left Garrett a voice mail asking him to remove the
online posts, but Garrett never returned the call and never removed the posts.
On December 2, Garrett sent Jacqueline a check for $1,000 for pregnancy and
birth expenses. On December 18, he sent her another check for $250. He sent additional
checks for $100 each in January and February 2014. All of the checks were sent through
Garrett's counsel. Jacqueline never cashed any of the checks because she "felt he was
just doing it for litigation purposes."
Garrett also sent Jacqueline baby supplies in December. His mother made two
purchases on his behalf, which totaled more than $250 in goods, and cost approximately
$50 to ship. Garrett personally made a third purchase of baby supplies that cost
approximately $36 to ship.
On December 18, Garrett wrote in an e-mail to Jacqueline, "I just want to know
when our baby is born so I can come see it right away." Jacqueline never responded,
reasoning that Garrett already knew when the baby would be born because she had
previously told him that her due date was December 22.8
Baby Boy W. was born in San Diego on December 23. Garrett was not present.
The next day, Jacqueline relinquished custody of Baby Boy W. to the Hs by signing an
8 Jacqueline acknowledged that the initial due date had changed when medical staff
realized that she was further along than they had initially thought.
14
independent adoption placement agreement.9 On December 27, the Hs filed an adoption
petition and Jacqueline amended her petition to add the Hs as copetitioners seeking to
terminate Garrett's parental rights. On that same day, Jacqueline's counsel sent Garrett an
e-mail informing him that Jacqueline had given birth to a baby boy and that the baby was
being placed for adoption. No one informed Garrett that the Hs had already left town
with Baby Boy W.
Garrett relocated to San Diego just over one week after learning of Baby Boy W.'s
birth. Within a month, he found a full-time job. He continued taking college courses and
expected to graduate in July 2014.
On January 14, 2014, results of previous DNA paternity testing confirmed that
Garrett was Baby Boy W.'s biological father.
The trial court heard appellants' petition to terminate Garrett's parental rights over
five days in March 2014. On cross-examination, Jacqueline acknowledged that she knew
that Garrett was Baby Boy W.'s father the moment that she found out that she was
pregnant—"there was no possibility of anyone else being the father." She also
acknowledged that Garrett held himself out as Baby Boy W.'s father. He was willing to
sign a voluntary declaration of paternity, but she was not. Jacqueline admitted that her
petition alleged Garrett's paternity "on information and belief" because she "wasn't going
to commit to something that could possibly ruin or destroy what [she] wanted for [her]
baby." Jacqueline acknowledged that her family is "financially well off" and that the
9 We grant the Hs' request for judicial notice.
15
money that Garrett sent her in December and January "was actually more money than
[she] needed with regard to [her] financial support." The court found that Garrett is a
presumed father under Kelsey S., that he is not an unfit father, and that he had not
abandoned Baby Boy W. The court filed a statement of decision and order after hearing
on April 22. Appellants filed notices of appeal from the statement of decision. The court
entered a judgment denying appellants' petition on June 16. Appellants then amended
their notices of appeal to include the judgment.
DISCUSSION
I
Appellants challenge the trial court's finding that Garrett is a presumed father
under Kelsey S.10 They contend that the trial court misunderstood and misapplied Kelsey
S. They also contend that there is insufficient evidence to support the trial court's Kelsey
S. findings. We conclude that the trial court properly applied Kelsey S. and that the
court's findings are supported by substantial evidence.
Overview of Kelsey S.
"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., supra, 212 Cal.App.4th at p. 202.) " 'If a man is the presumed father of
a child, the child cannot be adopted without his consent [citation], unless the trial court
10 Jacqueline and the Hs joined in each other's respective arguments. We will
therefore not distinguish which arguments were specifically advanced by which
appellants.
16
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.]' " (Adoption of H.R. (2012) 205 Cal.App.4th
455, 465.)
Section 7611 sets forth the ways in which a man can attain the status of presumed
father. (Adoption of A.S., supra, 212 Cal.App.4th at p. 202.) Under that statute, a man
generally is presumed to be the father of a child if he has married, or has attempted to
marry, the child's mother; he has completed a voluntary declaration of paternity; or he has
"receive[d] the child into his . . . home and openly holds out the child as his . . . natural
child." (§ 7611, subd. (d); Adoption of A.S., supra, at p. 202; Adoption of H.R., supra,
205 Cal.App.4th at p. 465.) Garrett does not contend that he satisfied any of these
statutory criteria, though he asserts that Jacqueline thwarted his efforts to complete a
voluntary declaration of paternity.11
In Kelsey S., the Supreme Court "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." (Adoption of A.S., supra, 212
11 A voluntary declaration of paternity must be signed by both the mother and the
father to be effective. (§ 7574, subd. (b)(1) & (b)(5).) Once completed, the declaration
establishes a child's paternity with "the same force and effect as a judgment for paternity
issued by a court of competent jurisdiction." (§ 7573.) This litigation and, more
importantly, the disruption of Baby Boy W.'s placement, could have been avoided if
Jacqueline had signed the declaration. We are troubled that she refused to do so in light
of her certainty that Garrett was the father, as DNA testing later confirmed.
17
Cal.App.4th at p. 208.) This is because the "biological connection between father and
child is unique and worthy of constitutional protection if the father grasps the opportunity
to develop that biological connection into a full, and enduring relationship." (Kelsey S.,
supra, 1 Cal.4th at p. 838, italics added.) Thus, the Kelsey S. court "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 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." '
[Citation.] '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.' " ' "12 (Adoption of A.S., supra, at pp. 208-209.)
12 "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
18
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.' " (Kelsey S., supra, 1 Cal.4th at p. 849.) "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.) A father's willingness to provide "emotional,
financial, medical, or other assistance during pregnancy" is particularly important where
the mother is a teenager and in need of this assistance.13 (Michael H., supra, 10 Cal.4th
at p. 1055.)
"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-
of the child's best interest.' " (Adoption of A.S., supra, 212 Cal.App.4th at p. 208.) A
biological father's constitutional rights apply with equal force when, as here, the mother
unilaterally precludes him from becoming a presumed father by refusing to sign a
voluntary declaration of paternity despite the fact that paternity is not disputed.
13 That said, nothing in Kelsey S. or Michael H. suggests that the father is required to
love or dote on the mother, propose marriage to her, or be a compatible mate to qualify as
a fully committed parent. All that is required is that he provide care and support for the
mother's physical and emotional health to the extent it affects the health and welfare of
the child she is carrying.
19
680.) Appellants acknowledge in their briefing that 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." (Adoption of Arthur M. (2007) 149 Cal.App.4th 704,
717.) "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.) In applying this standard here, we are again
mindful of the trial court's credibility determinations.14
The trial court properly applied Kelsey S.
Appellants contend that the following passage from the trial court's oral
announcement of its ruling demonstrates that the court misunderstood and misapplied
Kelsey S.: "As I was looking at this, I was struck with the irony of the fact that it is easier
to become a Kelsey S. father than it is to become a [section] 7611 father. [¶] Kelsey S. is
all talk. [Section] 7611, you actually have to do it. They actually have to be a father."
Appellants contend that this passage reveals that the trial court mistakenly believed that a
14 At oral argument, the Hs' counsel cited the recently published opinion in In re D.S.
(2014) 230 Cal.App.4th 1238, 1245 for the proposition that, although the substantial
evidence standard of review applies to the trial court's factual findings, we review de
novo whether those facts satisfy the legal standard established by Kelsey S. "In the final
analysis, the point is somewhat academic in this case. The result is the same under either
a deferential or independent review." (Adoption of Arthur M., supra, 149 Cal.App.4th at
p. 718.)
20
father can establish Kelsey S. rights entirely through "cheap talk" (as the Hs pejoratively
put it in their briefing on appeal) rather than through conduct. We are not convinced.
First, it was undisputed that Garrett was not pursuing presumed fatherhood status
under section 7611. Therefore, the trial court's discussion of the comparative burdens
under section 7611 and Kelsey S. was extraneous and of no moment.
Second, the trial court made its informal comments after it had already announced
that it would issue a formal, written statement of decision. The court's informal preview
of its ruling may not be used to impeach the subsequent formal statement of decision. (In
re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647 [" 'The findings and conclusions
constitute the final decision of the court and an oral or written opinion cannot be resorted
to for the purpose of impeaching or gainsaying the findings and judgment' "]; Wilshire
Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 638 ["The trial court's
tentative opinion has no relevance on appeal"].)
Third, and in any event, the trial court's 16-page statement of decision
demonstrates that the court undertook a thorough analysis of the Kelsey S. factors. To the
extent that appellants contend that the trial court's misunderstanding of Kelsey S. is
repeated in the statement of decision, our discussion below regarding the substantial
evidence of Garrett's actions in connection with each Kelsey S. factor disposes of that
challenge.
Finally, although we do not agree that Kelsey S. "is all talk," we recognize that in
cases such as the instant one, in which the father is seeking to establish his paternal rights
21
before the child is born—that is, before he has an opportunity to "receive[] the child into
his . . . home and openly hold[] out the child as his . . . natural child" (§ 7611,
subd. (d))—some of his evidence will necessarily be in the form of talk about his post-
birth intentions. In such cases, we rely on triers of fact to weigh the evidence and make
credibility determinations.
The trial court's application of Kelsey S. is supported by substantial evidence
In its statement of decision, the trial court analyzed Garrett's satisfaction of his
obligations under Kelsey S. by considering the following seven factors: (1) "[o]nce he
knows of the pregnancy, promptly attempting to assume parental responsibilities as fully
as the mother will allow and his circumstances permit"; (2) "[d]emonstrating a
willingness himself to assume full custody of the child—not merely to block adoption by
others"; (3) "[p]ublicly acknowledging paternity"; (4) "[p]aying pregnancy and birth
expenses commensurate with his ability to do so"; (5) "[p]romptly taking legal action to
seek custody of the child"; (6) "[p]roviding full emotional, physical and financial support
to the mother during pregnancy"; and (7) "[i]f the mother favors adoption and he objects,
promptly notifying her of that opposition." The trial court found that Garrett "met some
Kelsey S. conditions well, others imperfectly and grudgingly, but enough to preserve his
constitutionally protected right to have a relationship with his biological child."
Appellants acknowledge that Garrett satisfied some of the Kelsey S. factors, but contend
that insufficient evidence supports the trial court's findings on other critical factors. We
will address each factor, in turn.
22
Promptly attempting to assume parental responsibilities
The trial court did not make a finding specific to this factor, but our examination
of the substantial evidence supporting the other Kelsey S. factors, as we discuss below,
leads us to conclude that Garrett took a number of actions that would support a finding
that he promptly attempted to assume parental responsibilities.
Willingness to assume full custody, not merely block adoption
The trial court found that Garrett "has stated he is willing to assume full custody of
the child, but made it clear he would rely on his family if he does. For example, he
testified he has a full nursery in his mother's home in Atlanta. The court notes many
people [Garrett's] age rely on grandparents to help care for an infant." Substantial
evidence supports this finding.
Jacqueline's family friend, Michael, testified that Garrett's "perfect" and fallback
plans both involved Garrett raising Baby Boy W.; the former would involve Jacqueline,
the latter would involve Garrett's mother. In either event, Michael had "no doubt" that
Garrett "felt there was obligation with raising the child."
Garrett pleaded with Jacqueline in a July text message to allow him and his family
to raise Baby Boy W.: "If you don't think you are a fit mother then give my family the
chance to raise our child. I'm not sure why you think we are monsters. My family has a
lot to offer this child and will be apart [sic] of its life. Since it won't be placed in
adoptive custody, it is time we make arrangements to prepare for raising our child
whether it be with you or with me. My hopes were to remain with you as a couple but
23
since you have decided to separate from me we will have to make alternate arrangements.
However, it is certain that I will have a very close relationship with my child under ita
[sic] biological parents custody and I wish you to have the exact same privilege."
In an exchange of text messages on July 25, Garrett wrote to Jacqueline, "Just
gotta let me know what level of involvement you want to have in raising the child. It's all
up to you and your family." Jacqueline responded, "What does that mean? Is that best
for the baby?" Garrett replied, "Just means that I chose [sic] to support my child and
raise it along with the support of my family, and hopefully you will choose to see that
you and I can give our child everything that [it] needs to be a successful person. I truly
hope that you want to make it work, because despite what you think I love you very much
and know our child is blessed to have you as a mother."
Garrett read parenting books and set up a full nursery at his parents' house. He
repeatedly petitioned the court for custody or visitation. In addition, he moved to San
Diego just over a week after learning of Baby Boy W.'s birth and secured full-time
employment within a month after that.
Appellants argue that, "like the biological father in Adoption of O.M. [supra, 169
Cal.App.4th 672], Garrett was simply seeking legal custody so that his mother could raise
the baby, demonstrating that his main objective was to block an adoption." We disagree.
First, Adoption of O.M. is factually distinguishable. The father there sought "only legal
custody, while relegating physical custody to his parents until he is released from his
present lengthy incarceration." (Id. at p. 681.) Here, although Garrett clearly intended to
24
involve his parents in Baby Boy W.'s upbringing, the record does not support a
conclusion that he intended to relegate all parental responsibility to them. Second, on
that point, the trial court "note[d] many people [Garrett's] age rely on grandparents to
help care for an infant." Appellants have not cited any evidence or authority that would
undermine this finding, particularly where the father is still finishing college.
Accordingly, substantial evidence supports the trial court's finding with respect to this
Kelsey S. factor.
Publicly acknowledging paternity
The trial court found that Garrett "clearly, promptly and publicly informed
[Jacqueline] and others he was the father of the baby." This finding is not in dispute.
Paying pregnancy and birth-related expenses
The trial court found that Garrett "did send some money to [Jacqueline], but only
after he became aware of that legal requirement, and none of it came from his own funds.
(The checks, totaling $1,200, were drawn on [Garrett's] attorney's trust account;
[Jacqueline] did not cash them.) Nevertheless, [Garrett] was a college student with
limited means, and [Jacqueline] never asked him to contribute. Kelsey S. states a father
must offer financial support commensurate with his ability to do so, and it is not a
dispositive issue in any event." Substantial evidence supports the trial court's finding that
Garrett provided adequate financial support commensurate with his ability to do so and
with Jacqueline's need.
25
In 2013, Garrett earned gross income of approximately $11,000 from his part-time
job and band gigs. In addition, he received a gift of $1,000 from his brother for making
the dean's list, and also received an unspecified allowance from his parents to help with
living expenses and his cross-country move to San Diego in January 2014. On the other
side of the ledger, Garrett was one of three tenants on a residential lease with a monthly
rent obligation of $1,800. Assuming that he and his roommates split that obligation
equally, Garrett paid $600 per month, or $7,200 per year. Garrett was also a member of a
fraternity that had dues that ranged from $2,500 to $3,500 per semester.15 This evidence
of his financial condition supports the trial court's finding that Garrett was "a college
student with limited means"—a finding that is bolstered by Norman's testimony that he
found Garrett's financial condition unsatisfactory.
Appellants attempt to minimize Garrett's financial contributions by asserting that
"none of those funds came from his employment," and "even the few baby supplies that
Garrett sent to [Jacqueline] were paid for by his mother."16 However, appellants cite no
authority for the proposition that a father's financial contributions must come "from his
employment" as opposed to other sources. Indeed, public policy would not be served by
15 Garrett testified that he quit the fraternity in 2013 so that he would have more
money available to provide for Baby Boy W.
16 The latter assertion is erroneous. Although Garrett's mother made two purchases
on his behalf in Alabama, he personally made a third purchase at a Target store in North
Carolina and paid to have it shipped to San Diego.
26
refusing to credit a father with financial contributions that he resourcefully obtained from
sources other than his employment.17
In contrast to Garrett's limited financial means, substantial evidence establishes
that Jacqueline did not require any financial assistance from Garrett. She received
discounted medical care from her mother's employer, her health insurance covered all of
her medical expenses, her family is "financially well off," and the checks that Garrett
sent—which Jacqueline never cashed—were, according to Jacqueline, "actually more
money than [she] needed with regard to [her] financial support." Thus, substantial
evidence of Garrett's limited financial resources and Jacqueline's limited financial need
support the trial court's finding regarding this Kelsey S. factor.
Promptly taking legal action
The trial court found that Garrett "took prompt legal action to secure his
paternity." This finding is not in dispute.
Providing full emotional, physical, and financial support to the mother
According to the trial court, "This trial was about [Garrett's] level of commitment
to emotionally supporting [Jacqueline] . . . ." Not surprisingly, then, the court made
lengthy findings on this factor, from which we have distilled the following excerpt:
"[Garrett] attempted to be emotionally supportive in his own way, but lacked the maturity
to do so effectively. [Jacqueline] appropriately did not view [Garrett] as emotionally
17 Appellants' argument appears to us to be motivated more by a desire to inflict
financial pain on Garrett than to ensure that Jacqueline and Baby Boy W. received
adequate prenatal care.
27
supportive. As [Garrett] requested, the court has reviewed carefully 250 or so pages of
texts he especially emphasized as underscoring his devotion to [Jacqueline] and the child.
[Jacqueline] described how everything from [Garrett] was about him and making him feel
better, that her point of view was acknowledged but disregarded, and that his actions did
not match his words. The court agrees. [¶] The court nonetheless finds [Garrett's]
attempts at emotional support adequate, but acknowledges its struggle with the issue. . . .
[¶] [T]he court treated the issue of emotional support objectively without considering
whether the mother (or the court) was impressed with [Garrett's] efforts in giving it. The
support he offered to [Jacqueline] was genuine in his mind, at least until December 2013.
The court is not excusing his behavior after that, but it did come in response to
[Jacqueline's] attempt to terminate his paternal rights." Substantial evidence supports this
finding.
There can be little dispute that Garrett was supportive during the first trimester of
Jacqueline's pregnancy. She admitted that he was "relatively supportive" in April when
they confirmed the pregnancy at the pregnancy center, and clinic staff described Garrett
as "very supportive." Even Norman acknowledged that Garrett was supportive during
this time. When Jacqueline went to Italy in May, Garrett communicated with her daily
and researched remedies for her itchy skin. In June, he changed his college major so that
he would have the option of taking online classes remotely in the event that he were to
relocate. In July, he visited Jacqueline and her family in San Diego for one week. He
explored housing and employment opportunities. Garrett gave Jacqueline back rubs and
28
attended to her when she suffered from stomach cramps. Family friend Michael testified
that he was "impressed" with the level of Garrett's concern for Jacqueline and "kn[e]w
that he cared enormously for" her. Garrett left his watch for Jacqueline as a gift. On July
9, the day after their apparent breakup, Jacqueline sent Garrett text messages telling him
that he was "doing an amazing job," "you're an awesome guy," and "[y]ou're the best[,] I
can't tell you enough. Thank you."
Garrett continued to communicate with Jacqueline and even communicated with
Norman regarding a financial plan. On July 22, Garrett asked Jacqueline about her
medical appointment that day and the status of her placenta previa. He also asked
whether she had a picture of an ultrasound, but none was taken that day. Garrett then
asked, "Will you on the next one"? On July 25, he asked her about her medical
appointment that day. She responded with an image of an ultrasound, to which he
responded, "[i]ncredible." Garrett asked if Jacqueline's due date had changed and when
her next appointment was.
Things between Jacqueline and Garrett changed in late July after she continued to
raise the "concept" of adoption. Although she claims not to have decided on adoption
until September, the record contains numerous references by her in July and August to
her "decision." For example, in an August 2 exchange of text messages, Jacqueline
wrote, "I really want you to be a part of my decision and support me in my decision and I
would love your help in that." Garrett responded, "Like I've said, it's not an option
anymore. I see no good reason to place my child in adoptive care when I have the option
29
and resources to provide for my child. You will be able to finish school and so will I.
Your life is not over and I want you to be apart [sic] of my decision too."
In another exchange, Jacqueline asked Garrett via text message, "If you really love
me, do you support me in my decisions?" He replied, "Unfortunately I wish I could, but I
can't. I think about this all the time and what sucks is either way you've separated
yourself from me, and I've lost someone who I can never replace. [¶] I know that one day
I will look back and be happy for the side I have taken. I understand why you take the
stance you do, but I wish you would understand how difficult it is [for] me to try to
explain that adoption will not be an option for the child, so we need to start working
together not against each other, and prepare for how this is going to be."
Jacqueline and Garrett's disagreement over adoption led her to discourage further
communications from Garrett. On August 6, he asked, "What have I done other than
want to keep my child?" Jacqueline responded, "It's not about keeping the child or
keeping us together it's about what is best for the baby and what situation will be best for
him or her in the long run. Not what situation is best for us." Garrett wrote back, "I just
don't get why you would break up with me when all I want is to raise my child? It's not
about me it's about my child. I'm going to be in its life and we need to start figuring it
out[,] not arguing about adoption, because frankly its [sic] not going to happen."
Jacqueline replied, "We both have very different views Garrett and this is why I don't
want to talk to you all the time. It's not your way or the highway[,] it's a median that we
have to decide on."
30
In another August 6 exchange, Garrett wrote, "I'm not choosing adoption is the
thing." Jacqueline responded, "Okay so there's no need to ask me about how I'm doing
then and what I'm feeling. My feelings havent [sic] changed and won't change!"
Jacqueline stopped responding to Garrett's text messages in September and largely
stopped communicating with him altogether.18
Garrett thus found himself in the "Catch-22" contemplated by Justice Kennard in
her concurring and dissenting opinion in Michael H., supra, 10 Cal.4th at pages 1068-
1069: "If in the early stages of the mother's pregnancy [the father] vigorously opposes
the mother's decision to relinquish their child for adoption, he runs the risk of irreparably
damaging his relationship with the mother and causing her emotional upset, quite the
opposite of the emotional support he must give under Kelsey S. . . . If, on the other hand,
he initially acquiesces in the mother's decision to place the child for adoption, hoping to
change her mind before the child is born, he has, under the majority's holding, forfeited
his right to object later in the pregnancy to the child's adoption." Garrett clearly falls in
the former category.19
18 Given this fact, it is somewhat disingenuous for appellants to assert that "after
September," Garrett "never once asked about an appointment or the baby's health."
19 Michael H. is factually distinguishable. There, the 20-year-old biological father
showed a lack of emotional support to the 15-year-old mother by (1) having two violent
outbursts against her, one of which led to his arrest on charges of aggravated assault; (2)
attempting suicide on the mother's 16th birthday in a trailer parked behind her house; and
(3) concealing his opposition to adoption until after the child was born. (Michael H.,
supra, 10 Cal.4th at pp. 1048-1049.) In contrast, Jacqueline acknowledged that Garrett
31
Appellants devote much of their briefing to the fact that Garrett never proposed to,
or married Jacqueline.20 However, they cite no authority that would support the
proposition that marriage is a Kelsey S. factor. Nor could it be. If a biological father
were to marry the mother, then he would be a presumed father under section 7611,
obviating the need to conduct a Kelsey S. analysis. Moreover, Jacqueline testified that
she knew that Garrett was willing to marry her, but added that she "shouldn't have to tell
someone I want to get married."
Appellants also suggest that Garrett could not have provided Jacqueline with
adequate emotional support unless he relocated to San Diego during the pregnancy.
Again, they cite no authority that would indicate that doing so was necessary.21 While
Garrett's relocating to San Diego may have been Jacqueline's perfect plan, his perfect
plan was for her to return to Tuscaloosa, where they met and conceived Baby Boy W.; to
finish college; and to raise Baby Boy W. together. Neither parent attained his or her
perfect plan. However, Jacqueline was in the unique biological position to attempt to
never hit her, never threatened her, and never called her a bad name. However, she
testified that he was verbally abusive because he yelled at her over the telephone when
they argued about adoption.
20 By Garrett's count, the Hs' opening brief "faults Garrett [32] times for not
proposing or moving to San Diego. In [Jacqueline's] [opening] brief, his decision not to
propose comes up [24] times, and his choice to remain in Alabama is criticized [27]
times."
21 Indeed, appellants concede that the cases they cite stand for the unremarkable
proposition that Kelsey S. requires actions, not just words; appellants do not contend that
the cases are analogous to the facts of this case.
32
violate her own admonition against a "[my] way or the highway" negotiation tactic.
Kelsey S., however, does not condone such unilateral decisionmaking, even when, as
here, the mother sincerely believes that adoption is in the child's best interest:
"It . . . would be curious to conclude that the child's best interest is served by allowing the
one parent (the mother) who wants to sever her legal ties to decide unilaterally that the
only other such tie (the father's) will be cut as well. Absent a showing of a father's
unfitness, his child is ill-served by allowing its mother effectively to preclude the child
from ever having a meaningful relationship with its only other biological parent."
(Kelsey S., supra, 1 Cal.4th at p. 848.)
We turn now to the conduct for which the trial court found that Garrett "has much
to be modest about"—his social media campaign. While we agree that the campaign may
have been ill-conceived and poorly executed, opening a Pandora's box of hurtful
commentary from uninvolved third parties, the trial court was aware that Garrett resorted
to it only "in response to [Jacqueline's] attempt to terminate his paternal rights"—that is,
after their interests had diverged and they had become litigation adversaries. We
therefore conclude that the trial court did not err by finding that the social media
campaign did not disqualify Garrett from obtaining fatherhood status under Kelsey S.
In sum, there is substantial evidence to support the trial court's conclusion that
Garrett offered sufficient emotional support to Jacqueline.
33
Promptly notifying the mother of any objection to adoption
The trial court found that Garrett "promptly informed [Jacqueline] he opposed the
adoption" and that the Hs "knew [Garrett] was opposed to the adoption when they took
custody of the child." These findings are not in dispute.
Conclusion
Under California law, an unwed mother does not have an unqualified, unilateral
right to decide that her baby will be adopted and to deny the biological father his right to
parent his child under either section 7611 or Kelsey S. Jacqueline prevented Garrett from
qualifying as a presumed father under section 7611 solely by refusing to sign the
voluntary declaration of paternity, which led to protracted litigation over whether Garrett
qualified as a quasi-presumed or Kelsey S. father. Regrettably, the result of this litigation,
which has spanned the first year of Baby Boy W.'s life, will inevitably be enormously
painful for the Hs and disruptive, at best, to Baby Boy W.
34
DISPOSITION
The judgment is affirmed. Garrett is entitled to his costs on appeal.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
35