The opinion
Filed 9/29/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ADOPTION OF X.D., a Minor. B343632
______________________________
CLIFF D. et al., (Los Angeles County
Super. Ct. No. 22CCAD00870)
Plaintiffs and Appellants,
v.
RAYMON M.,
Objector and Respondent;
JESSICA W.,
Intervener and Appellant;
X.D., a Minor, etc.,
Appellant.
_____________________________
RAYMON M., B343634
Objector and Respondent,
v.
JESSICA W.,
Intervener and Appellant.
CONSOLIDATED APPEALS from findings and orders of
the Superior Court of Los Angeles County, Nichelle Blackwell,
Juvenile Court Referee. Reversed and remanded with directions.
John L. Dodd & Associates and John L. Dodd for Plaintiffs
and Appellants.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Minor and Appellant.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Intervener and Appellant.
Leslie A. Barry, under appointment by the Court of Appeal,
for Objector and Respondent.
______________________________________
INTRODUCTION
Baby Boy W., born on May 10, 2022, was given a name with
the initials X.D. at birth and has lived with his prospective
adoptive parents, Cliff and Rebecca, his entire life. 1 X.D.’s
biological mother, Jessica, had placed him for adoption on the day
he was born.
Jessica had long suffered from physical and verbal abuse by
X.D.’s biological father, Raymon. Two weeks after learning they
were expecting their second child, Raymon hit Jessica in the face,
causing a bloody lip; this led her to leave Raymon and seek refuge
at a domestic violence shelter with the couple’s then-only child,
Raymon, Jr. (Ray). Following a barrage of angry voicemails and
threats, Jessica cut off all communication with Raymon. She did
1 We refer to Baby Boy W. as “X.D.” For ease of reference
and without intending disrespect, we refer to the prospective
adoptive parents and the biological parents by their first names.
2
not see him again until six months after X.D.’s birth, at which
point she told Raymon that the baby “is not here no more.”
Raymon believed Jessica had miscarried.
The prospective adoptive parents proceeded with adoption.
On January 12, 2023, Raymon was notified of adoption
proceedings and of X.D.’s birth. He opposed the adoption in court
filings and claimed he qualified as a Kelsey S. father. 2 The trial
court agreed with him.
X.D., his prospective adoptive parents, and Jessica all
appeal the trial court’s ruling. They contend Raymon did not
qualify as a Kelsey S. father because he did not contribute to his
child’s well-being during pregnancy and because substantial
evidence does not support the trial court’s ruling. Appellants also
contend the trial court prejudicially erred in excluding trial
exhibit P-107—screenshots of text messages in which Raymon
threatened to kill Jessica and their unborn child.
We agree with appellants and reverse.
We conclude the trial court erred in excluding exhibit
P-107; the screenshots were sufficiently authenticated and
relevant to the trial court’s determination of whether Raymon
qualified as a Kelsey S. father, and were otherwise admissible.
We also conclude that, once exhibit P-107 is considered part of
2 Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.)
[If an unwed biological father, who was precluded from asserting
his parental rights as a result of the mother’s actions, “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.”].
3
the evidentiary record, insufficient evidence supported the trial
court’s decision. Lastly, the record demonstrates that it is not in
X.D.’s best interest for Raymon to retain parental rights per
Family Code section 7664, subdivision (b). On remand, we direct
the trial court to allow the adoption to proceed.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Birth Parents’ Prior History
In 2020, 23-year-old Jessica met 32-year-old Raymon while
they were both residents at a substance abuse program called
Divine Detox in Simi Valley. Raymon sought treatment to
recover from cocaine and alcohol addiction. At the time they met,
Raymon had a lengthy criminal record and was on parole. In
2009, he had been convicted of second degree robbery. In 2010,
he was convicted of kidnapping and forcible rape/unlawful sexual
abuse for which he served a five-year sentence. In 2015, he was
convicted of two separate instances of attempted second degree
robbery and sentenced to four years in prison; he was released in
2019.
Against the rules of the program, Raymon and Jessica
developed a sexual relationship and “ultimately became a
couple.” They never married.
When Jessica, now sober, was six months pregnant with
her first child (not X.D.), she and Raymon graduated from the
program. They lived part of the time in an apartment in Santa
Clarita and part-time with Raymon’s family in East Palo Alto.
While she was seven months pregnant, Raymon choked her
during an argument, “causing her to lose her breath for 15 to 20
seconds.” Jessica found a “white substance” and “baggies with a
residue of a substance” in their apartment. Raymon referred to
4
his cocaine and alcohol abuse as “weekend binges.” He relapsed
four times during the four-month period leading up to the child’s
birth. Their first child, Ray, was born in May 2021. 3
At Ray’s birth, Jessica was sober; Raymon was not.
According to Jessica, their relationship “was tumultuous” and led
to incidents of domestic violence. He was “physically and
mentally abusive” towards her and called her “derogatory
names.” He choked her on three occasions. While they were
staying with Raymon’s family in East Palo Alto, Raymon “use[d]
drugs, [was] absent from the home on weekends, and he engaged
in another altercation by thumping [Jessica] on her head while
she was bottle feeding [Ray], which caused her to fall.” 4 The
“bottle went flying in the air and hit the baby in the head.”
Jessica confronted Raymon about his drug use multiple times
and told him he “shouldn’t be using.” During an argument, he
pushed her up against the wall and had his hands around her
neck; his behavior “frighten[ed]” her, especially as he was
“significantly larger” than she was. While they were living with
his parents, Raymon once threatened to kill Jessica.
B. The Final Act of Physical Domestic Violence and Its
Aftermath
On September 7, 2021, Jessica took a home pregnancy test
which registered positive. Raymon was present and reviewed the
test results with Jessica. He was “happy” to have another child;
Jessica was not and, in front of Raymon, began “looking up
3 Raymon also has a daughter from a previous relationship
but did not have custody.
4 Jessica defined “thumping” as “shoving my head.”
5
doctors to abort.” Raymon told his sister Rubye and his mother
about Jessica’s pregnancy. (This is the pregnancy that resulted
in the birth of X.D.)
Two weeks later, on September 21, 2021, Jessica and baby
Ray were seated in the backseat of a vehicle that Raymon was
driving. Raymon was on the speaker phone in a heated
argument with his mother. Jessica was soothing Ray and told
Raymon he “should not talk to his mother in a disrespectful
manner.” Raymon then turned “back and hit [Jessica] in [her]
mouth and busted [her] lip.” Her lower lip started bleeding.
When Raymon stopped at a red light, Jessica grabbed Ray, got
out of the car, ran into a nearby fast-food restaurant, and locked
Ray and herself in the bathroom. She then called the police and
her friend Angie Vasquez. 5 Raymon drove off because he was
“concerned that the police were going to come.” When law
enforcement arrived, Jessica did not identify her assailant
because she was concerned about Raymon’s “two felony
convictions” and “didn’t want him to get in trouble.” The police
took her to a local Walmart to purchase a car seat for Ray. She
and Ray then stayed at Angie’s house for three days.
Angie helped Jessica find a domestic violence shelter in
Long Beach. During this time, Jessica (still pregnant with X.D.)
had “very little” communication with Raymon, who had promised
he “won’t do that again.” Jessica stated Raymon would regularly
apologize after his abuse. Jessica and baby Ray moved into the
5 Angie previously worked as a “sober coach” at Divine Detox
and met Jessica in 2019 at the program. After graduating,
Jessica maintained contact with Angie and developed a
friendship. Angie also knew Raymon from the program.
6
domestic violence shelter (DV shelter) and stayed for 25 days.
During that time, Jessica was not permitted contact with
Raymon.
In late September 2021, while Jessica was still at the DV
shelter, Raymon called Jessica’s friend, Angie, and sent her text
messages inquiring about Jessica. Angie told him Jessica was in
a shelter and could not have contact with anyone. Angie texted
back: “[Y]ou should never put your hands on anybody, especially
your child’s mother.” Raymon replied, “U right I should have
never did that and I promised her it will never happen again
I was wrong . . . I won’t lose it aga[in].” In another text, Raymon
stated, “I fucked up” and “I’m realy [sic] not a bad person I lost
it.”
On September 23, 2021, Raymon left three voicemails for
Jessica, even though Angie had informed Raymon that Jessica
could not have contact with him while she was living at the DV
shelter.6 Raymon’s first voicemail was: “Just answer the fucking
phone, bro. Where is my son? It’s 8 o’clock, bruh. Come on,
bruh, you’ve taken it too far. I slapped you because you was
coming between me and my mama . . . . You wrong, bro.” His
second voicemail: “I may punch and fight, and you may be scared
when I get mad. I’m not gonna hurt you. I love you, bud. Like,
why are you doing this to me, bruh? I don’t have a heart to do
this shit to you.” The third voicemail: “Let me tell you about
yourself, you fucking dyke. . . . I was depressed all day thinking
about how I got to let my fucking baby go. How we got to get a
fucking abortion. . . . You talking about my attitude? I ain’t put
6 The transcripts of the voicemail messages formed exhibit
P-126, which the trial court admitted into evidence.
7
my hands on you for nothing in a long time, bruh. I just been
trying to figure out shit, man.”
The next day, Raymon left her three more voicemails,
stating, “Answer my fucking phone calls. You selfish bitch. . . . I
swear to God . . . I’m doing everything I can to hurt you, bruh.”
He also alluded to taking some legal action: “I really don’t want
to do this, bruh but you’re forcing me bro, so I have to make a
complaint and then from there, bro, I have to do some type of shit
with the court, but I really don’t want to go there, bro. Like, are
you going to force me to go there?” He attributed Jessica’s
reaction to “hormones, because you’re like 3 months pregnant.
And um I’m gonna be real patient with you.”
About a month later, Raymon and Jessica spoke on the
telephone for “the first time” since he had hit her in the car.
Raymon asked if he could give Jessica money for “prenatal pills.”
She declined. Soon thereafter, Jessica and baby Ray moved from
the DV shelter to a sober living facility for women and children.
They lived there for the next year and a half.
When Jessica was two or three months pregnant, she
received from Raymon’s sister, Rubye, a text message containing
screenshots of three consecutive texts Rubye had received from
Raymon from his mobile number (650) 458-xxxx. Rubye had
saved Raymon’s mobile number under the contact name “Lil Big
Brother.” 7
7 The screenshots were marked as exhibit P-107, which the
trial court did not admit into evidence. We discuss the
significance of these texts and the court’s ruling in Part A of our
Discussion.
8
The three texts were time-marked over a two and one-half
hour period. The messages were:
(1) “I think Jessica left me for some body else she
cheating on me she so fucken cold hearted that bitch
ain’t shut I swear to god that bitch cheating on me.”
(2) “U let her fucken no I no she got another nigga and
ima kill all them morherfuckas I hate that sneaky
cheating as bitch.” (Italics added.)
(3) “I called from some one else phone that bitch hung up
on me cheating bitch when I ketch her ima kill that
selfish bitch I hate her with all my hear I swea[r] I’ll
go to jail for life cheating ass bitch fuck everything
ima make that bitch hurt that bitch is my enimie I ho
she die and that baby she carrying die evel bitch.”
(Italics added.)
Over the next few months, Raymon continued to leave
voicemails for Jessica, apologizing for his behavior. She did not
respond. On November 7, 2021, Raymon left the following
message, “I don’t even know if you’re still pregnant or not.” That
same day, Raymon attempted to file a missing person’s report,
claiming that Jessica was being held captive against her will.
On December 1, 2021, Raymon left Jessica another
voicemail, telling her she may use his Electronic Benefit Transfer
(EBT) card “for you and my son.”8 On December 15, 2021, he left
a message stating, “I hope your pregnancy is going smooth. If
you’re still are pregnant. I hope you are, but if you’re not, I still
love you.” Rubye sent Jessica $647 in November and December
8 “[M]y son” was an apparent reference to Ray, as X.D. had
not yet been born.
9
2021. Jessica began to receive money from Raymon’s mother
“starting sometime in 2022.”
On February 25, 2022, Raymon left Jessica another
message that stated, “thinking of [Ray] every day, even my
unborn, if there still is an unborn.” According to Jessica, in the
“handful of times” that Jessica and Raymon spoke or exchanged
voicemails, he mainly inquired about Jessica and Ray, and asked
about the pregnancy “[m]aybe two” times.
C. X.D. is Born and Placed with Prospective Adoptive
Parents
On May 10, 2022, Jessica gave birth to X.D. His birth
certificate lists Jessica as the mother and the father as
“unknown.” About two weeks before X.D. was born, Jessica had
contacted an adoption agency, Vista Del Mar Child and Family
Services, and participated in its selection process for potential
adoptive parents. She submitted a declaration to the adoption
agency where she identified the “possible birth father” as
Raymon. She also stated she did not know Raymon’s address but
indicated he might be living in the Bay Area. In her declaration,
in response to why she was “unable to identify the birth father,”
she wrote: “We weren’t together long he became abusive and I
had to leave the situation urgently.” She identified Ray as being
a “full” sibling to X.D.
On May 12, 2022, X.D. was released from the hospital and
immediately placed in the custody of prospective adoptive
parents Cliff and Rebecca. The couple had been pursuing
adoption for two years. By the time of the subsequent trial
proceedings, Cliff, Rebecca, and X.D. had been “living as a family
unit since they brought [X.D.] home from the hospital.” They “fell
10
in love the moment that [X.D.] started opening his eyes and
looking at us, and bonding has just been a beautiful experience.”
On May 13, 2022, Jessica executed a relinquishment form,
naming Cliff and Rebecca as X.D.’s prospective adoptive parents.
As Jessica had physical custody of X.D.’s brother Ray, she and
Rebecca discussed “letting the brothers get to know each other
with playdates at an appropriate age.”
From May through December 2022, Jessica received $7,488
from Raymon’s mother, who indicated the money was “from
Raymon sometimes; sometimes from herself.” According to
Jessica, Raymon’s mother would tell her to “buy diapers, buy
food, buy whatever you need for you and [Ray].” Raymon’s
mother never told Jessica the money she gave was for X.D.
“[S]everal times,” Raymon provided funds via Western Union for
Ray’s care. Jessica said Raymon never paid formal child support.
Jessica stated that, during this time, Raymon “begged” to
see Ray but she was anxious about visitation. Ultimately, in
November 2022, Jessica agreed that she and Ray would visit and
stay at Raymon’s mother’s house on the condition that Raymon
provide financial support. Raymon agreed and gave her $400.
Jessica and Ray spent the weekend before Thanksgiving of 2022
at Raymon’s mother’s home. That Saturday, with X.D. now six
months old and living with his prospective adoptive parents,
Raymon asked Jessica “So whatever happened to the baby?” She
said, “The baby is not here no more,” and Raymon left it at that.
Raymon testified he believed Jessica had miscarried because
there was “no baby present.”
11
D. Formal Adoption Request and Raymon’s Declaration
Opposing Adoption
Departing from our chronological description of events,
back on June 8, 2022, Cliff and Rebecca filed in the trial court a
request that the court approve their adoption of X.D., then one
month old. The request identified Jessica as X.D.’s biological
mother and Raymon as the alleged father. Cliff and Rebecca
asked the court to terminate Raymon’s parental rights.
Six months later, on January 12, 2023, Raymon was served
with a notice of alleged paternity of X.D. that the prospective
adoptive parents had filed. The notice advised Raymon that he
was required to file an action within 30 days should he wish to
establish paternity and contest the adoption. Raymon contacted
Jessica the next day but she denied having given birth; she told
Raymon, “that is a lie, there is no baby and no adoption.” Jessica
then stopped responding to Raymon’s calls.
Three weeks later, on February 3, 2023, Raymon filed a
declaration in court stating he is “100% against and contest[s]
any adoption” and would like to establish paternity. He stated: “I
can’t even express in words the emotions that came over me
after . . . reading . . . that petition. . . . [Jessica] became pregnant
with . . . our second child together [when] we were living
together. I repeatedly and contin[u]ously asked [Jessica] about
the status of the pregnancy and she used to get very upset.”
While Jessica and Ray were in a shelter for women and children,
“[w]e both had things to work on in our lives and I respected
what she was trying to do [while] she was in the shelter for over a
year and a half.” He continued that in November 2022, Jessica
“notified” Raymon and his parents that she “had miscarried our
second child,” which “devastated” him. He “believed at that time
12
that [Jessica] had lost our baby.” He did not know of X.D.’s
existence until he was served with the notice of alleged paternity.
“To be told that the mother of your expected child[] miscarried[,]
only to find out later [X.D.] was born and in the process of being
given up for adoption is one of the most traumatizing events that
has occurred in our lives.”
E. Prospective Adoptive Parents’ Petition to Determine
Raymon’s Parental Rights
On March 6, 2023, Cliff and Rebecca filed a petition to
determine the parental rights of alleged father Raymon and
whether his consent was required for adoption pursuant to
Family Code section 7662. 9 They asserted that Raymon’s consent
was not necessary and requested that the court terminate his
parental rights, assuming he had any.
On December 6, 2023, the adoption agency filed a report
informing the court the following: Jessica had provided the
adoption agency with a declaration stating Raymon is X.D.’s
biological father and that she and Raymon never married; she
terminated their relationship because he became “abusive” and
they are not in contact. Jessica’s declaration also stated Raymon
“did not give her money or items to help with the pregnancy or
child support expenses.” She did not know where Raymon
“currently is and does not have his contact information” other
than “he may be residing in the San Francisco Bay [A]rea.” The
adoption agency’s report provides that the adoption process could
not proceed because a court determination of Raymon’s parental
rights was necessary.
9 Undesignated statutory references are to the Family Code.
13
At hearings held December 7, 2023, and January 11, 2024,
separate counsel were appointed for Raymon, Jessica, and X.D.
On January 17, 2024, when X.D. was approximately
20 months old, Raymon sent the prospective adoptive parents a
greeting card for X.D., along with a cashier’s check for $250. Cliff
and Rebecca responded with a card and said they used the
“generous gift” to pay for X.D.’s swim classes. Raymon sent
another $250 in February, April, July, and October 2024.
Raymon did not send birthday or Christmas gifts for X.D.
At a status hearing held March 14, 2024, the court
appointed Dr. Nancy Kaser-Boyd as the expert to interview and
conduct a psychological evaluation of the parties pursuant to
Evidence Code section 730.
The parties stipulated to a paternity genetic testing, and on
March 26, 2024, the test results indicated a 99.99 percent
probability that Raymon was X.D.’s biological father.
F. Prospective Adoptive Parents’ Petition to Terminate
Raymon’s Parental Rights
On May 14, 2024, Cliff and Rebecca filed a petition for
freedom from parental custody and control pursuant to section
7822. The petition alleged that Raymon physically and
emotionally abused Jessica both prior to and during Jessica’s
pregnancy. Raymon did not assist with any of the
pregnancy-related expenses nor attend any of Jessica’s medical
appointments. The petition alleged that (1) X.D. has lived with
Cliff and Rebecca since his birth; (2) Raymon never assumed any
parental responsibility for X.D.; and (3) Raymon never filed an
action to establish a parent-child relationship with X.D. The
petition also alleged that Raymon did not provide any support for
X.D. “other than token efforts to provide support . . . only after
14
the commencement of th[is] action.” The prospective adoptive
parents argued Raymon did not qualify as a presumed father
under Kelsey S., and that it was in X.D.’s best interest for the
court to terminate Raymon’s parental rights.
The probation officer’s report, filed June 21, 2024,
recommended that the court grant Cliff’s and Rebecca’s petition
to terminate Raymon’s parental rights. The report found X.D.
had no contact with Raymon; on the contrary, Cliff and Rebecca
have been “the only ones who have provided care, supervision,
and love.” X.D. has been “thriving in a loving home” and
“appeared to be very attached” to Cliff and Rebecca. The
probation officer recommended the adoption process proceed as
Cliff and Rebecca are “able and willing to continue to raise,
adopt, and provide a loving home for [X.D.]”
G. Dr. Kaser-Boyd’s Report
Dr. Kaser-Boyd’s evaluation report was filed on October 14,
2024, and later admitted into evidence.
Dr. Kaser-Boyd did not recommend that the biological
parents be allowed to visit X.D. “If visitation becomes part of a
Post-Adoption Agreement, the rules need to be very clear, given
the history of antisocial behavior.” (Italics omitted.) Raymon’s
“criminal convictions, the drug use, and the domestic violence
strongly indicate a personality disorder. It is of concern as well
that one of his earlier convictions was for sexual offenses, though
apparently he did not have to register as a sex offender.” (Italics
omitted.) Raymon “has not raised his older daughter and he does
not appear to be contributing to the rearing of his namesake
[Ray].” (Italics omitted.) Jessica remains “very guarded about
contact between Raymon and [Ray] because of the history of
15
domestic violence. Jessica is rearing [Ray] by herself.” (Italics
omitted.)
When Dr. Kaser-Boyd asked Raymon “why the relationship
ended,” he became “somewhat vague”; he alluded to an argument
and said that “because the financing wasn’t working because of
the pandemic, she grew disenchanted.” He said he “simply could
not answer why she would . . . put the baby up for adoption
without informing him.” To Dr. Kaser-Boyd, it “seemed clear
that he was denying a history of domestic violence.” Dr.
Kaser-Boyd “thought [Jessica] was credible in her account as she
talked about being choked while pregnant [with Ray]. She got
very tearful. [¶] She also was, like other battered women, quick to
say that Raymon was nice when he was sober. It was only when
he was using that he was violent, . . . battered women also make
excuses.”
“The issues of greatest concern to this evaluator are the
domestic violence of [Raymon] towards Jessica, and his earlier
case involving sexual offenses. I understand that he choked
Jessica while she was pregnant and this is quite a high level of
domestic violence and disregard for the safety of his child.[10] His
violence towards Jessica, [toward] the female victim of the sexual
offenses in 2010, and the male victims of the robberies in 2015,
may have been related to his cocaine abuse; however, a
psychological evaluation by itself can’t inform the [c]ourt about
whether he has achieved long-term sobriety. If he has not, he
remains a risk to a young child, as well as to that child’s
caretaker(s).” (Italics omitted.)
10 Dr. Kaser-Boyd was apparently referring to Jessica’s
pregnancy with Ray.
16
Dr. Kaser-Boyd observed X.D. with Cliff and Rebecca. She
opined that it is “clear that this is a family unit, and [X.D.] sees
[Cliff] and Rebecca as his parents.” The attachment is a “strong”
one, and X.D. is “clearly very bonded to the prospective adoptive
parents.” (Italics omitted.) He “knows no other parents than
[Cliff] and Rebecca.” (Italics omitted.) She concluded that
disrupted attachment at X.D.’s age can lead to “mourning and
depression and long-term disruptions in trust and security”
which can “impact his ability to form a new attachment to a
caregiver.” (Italics omitted.)
H. Trial
Trial took place on November 4–8, 22, and December 6,
2024. The court heard testimony from Jessica, Raymon, Angie,
Cliff and Rebecca, and Dr. Kaser-Boyd. Their testimony, along
with other evidence, forms the basis of our recitation of the facts
and case history above.
Raymon testified he continued to use drugs in 2021, 2022,
and 2023. He admitted he was verbally abusive to Jessica. He
admitted to having called her a “dyke” and a “selfish bitch.”
However, he denied having hit Jessica while they were in the
vehicle on September 21, 2021—testimony the court did not find
credible. He acknowledged that the money he gave to Jessica
was meant for her and Ray, not X.D.
Raymon also testified that in 2015 he filed a petition
seeking custody of and visitation with his daughter from a
previous relationship, but was unsuccessful. When asked why he
filed the petition, he answered, “To be honest with you, I didn’t
know what I was doing. I filed anything I can because I knew I
was on my way to prison for four years.” He was “trying to get
some rights of custody and visitation” of his daughter.
17
At the time of trial, Raymon resided at an in-patient
program; he was there voluntarily and stated he would move
back to his parents’ house should he obtain custody. X.D. “has
his own room at my house right now. . . . I have daycare locked
up for him, My Little Disciples Preschool. [¶] I’m currently on
disability so I’ve got 24 hours out [of] the day to spend with my
son.” Raymon had completed one parenting class and enrolled in
a second parenting class that he was “9 or 10 weeks in for.” He
completed a 12-step recovery program and has “been in therapy
for the past year.”
As for exhibit P-107, the screenshot messages, the parties
argued extensively as to its admissibility. Prospective adoptive
parents proffered it to show Jessica’s mental state and reasonable
fear of Raymon and argued the exhibit is admissible for both
hearsay and non-hearsay purposes.
To authenticate the exhibit, Jessica testified she knew
Raymon had “threatened to kill [her] and [her] unborn child” and
referred to a text message she received from Rubye concerning “a
communication by [Raymon] that contained threats” against
Jessica.
During trial on November 6, 2024, the trial court asked
counsel, “Did you authenticate the telephone number with
[Raymon]?” Counsel for prospective adoptive parents answered,
“Yes, I did.” Counsel for Raymon confirmed and stated, “He did
do that.” After further exchange, the court asked once more, “But
was the phone number of [Raymon] established? Did you
establish this is his phone number?” Raymon’s counsel confirmed
that counsel for prospective adoptive parents “did do that, yeah.”
Raymon thereafter admitted on rebuttal that the telephone
number in the screenshot, (650) 458-xxxx, was his. When asked
18
whether Rubye referred to him as “Lil Big Brother,” Raymon
confirmed “[d]efinitely my little sister calls me that sometimes.”
Raymon also admitted that when Jessica separated from him, he
“accused her of having left [him] for somebody else.” Raymon
also testified that after Jessica left him, he called her from other
individuals’ telephones. However, Raymon denied sending the
exhibit P-107 text messages to Rubye.
At the close of evidence, the trial court heard argument on
the admissibility of exhibit P-107. Raymon’s counsel argued,
“[T]here’s nothing to indicate that it’s from Rubye to Jessica.
There’s absolutely no authentication for where it comes from.”
Prospective adoptive parents’ counsel argued they do not “need to
have Rubye testify in order to authenticate it. That’s not the law.
[¶] I do not need the author or whoever sent the document.
That’s not the law. [¶] The law is, is that the recipient, in this
case [Jessica], can testify that this is a document that she
received.”
The trial court indicated it was “struggling with the fact it
was sent by Rubye. 11 We don’t have Rubye here to authenticate.
She can’t authenticate that was sent by Rubye.” The court
sustained Raymon’s objection “on lack of authentication, double
and maybe triple hearsay.” The court explained: “You’re asking
to admit this document based on a hearsay exception, the
exception being not used to prove the truth but instead to prove
her mental state, but you still have to authenticate that thing
11 Rubye was incarcerated at the time. Raymon’s counsel had
made arrangements for Rubye to testify and had obtained a
minute order for her presence at trial, but at the last moment
apparently counsel decided not to call her.
19
you want to be admitted.” The court concluded that exhibit P-107
was not “sufficiently authenticated, and I don’t believe it gets
authenticated simply by someone receiving a screenshot of a
message. She was not party to the messages themselves.” The
court also observed the exhibit was “more prejudicial than
probative.”
I. Ruling and Statement of Decision
On December 6, 2024, the trial court ruled that Raymon
qualified as a Kelsey S. father. The court found Raymon
“presented substantial evidence to show that he is just like the
natural fathers in Adoption of Baby Boy W[.] and Adoption of
H.R., by demonstrating his full commitment financially,
emotionally, and otherwise to his parental responsibilities for
[X.D.]” (Italics added.) The court found Jessica’s “conduct after
leaving the relationship was a deliberate effort to prevent
[Raymon] from learning the status of her pregnancy and
asserting his parental rights”; the “lies [Jessica] told to Vista Del
Mar were clearly meant to prevent [Raymon] from learning about
the adoption and asserting his parental rights.” The court
reasoned that “unless it is proven that [Raymon] is statutorily
unfit to parent, this adoption shall not proceed without his
consent.”
The court continued, “[I]t is quite significant that although
the father knew from the home pregnancy test that turned out to
be positive that Jessica was pregnant, . . . it is critical, very
critical information that she admitted . . . she did not want to
have another child and that he confirmed that . . . she was
looking up abortion providers. [¶] She never communicated with
him about the pregnancy after they broke up and that left him in
the dark about whether she would go through with terminating
20
the pregnancy.” The court believed Raymon “didn’t have to use
the specific words of saying ‘I want custody . . . .’ He was showing
genuine concern about the unborn child, the pregnancy, how it
was going, if it was even going because she would not
communicate with him about it.” “Mother and father had their
tumultuous relationship because the father was still using drugs.
He hit the mother. She left. She had all reason to leave and I do
not fault her for leaving because she does not have to remain in a
relationship . . . where she’s being slapped in the mouth. [¶] She
had every reason to leave. [¶] What I fault her for is lying on
these [adoption] documents.” She told the adoption agency
Raymon “didn’t know, he doesn’t know he’s the dad, and it’s not
true because they were both there when the pregnancy test took
place.”
The court continued, “I do believe that the father has
demonstrated enough to show this court under Kelsey S. that he
financially provided for her by sending more than $7,400 to
her . . . . [¶] And I believe based on some of the messages, he even
showed support and love to her saying, you know, I don’t know if
you’re still pregnant, if you’re not, I still love you anyway. He
didn’t know.” The court “believe[d] that emotional support has
been shown.”
The court ordered bimonthly supervised visits for Raymon
with X.D., with a professional monitor present. The court
ordered that “no one is to disclose to [X.D.] that [Raymon] is his
father. [Raymon] is to be introduced to [X.D.] as just a family
friend.”
On January 28, 2025, the court issued its statement of
decision adopting its earlier proposed decision.
21
Prospective adoptive parents, Jessica, and X.D. each filed a
timely notice of appeal.
DISCUSSION
Because X.D., Jessica, Cliff and Rebecca all joined in each
other’s arguments, moving forward and unless otherwise
indicated, we refer to them collectively as appellants.
First, appellants contend the trial court abused its
discretion in excluding exhibit P-107. They argue they had laid
an adequate foundation for Raymon’s text messages threatening
violence. They also argue the exhibit was sufficiently
authenticated, relevant, and admissible for both non-hearsay and
hearsay purposes. Finally, they claim the exclusion was
prejudicial.
Second, appellants argue the trial court’s conclusion that
Raymon met his burden under Kelsey S. was unsupported by
substantial evidence. They argue the trial court essentially
shifted the burden to Jessica to maintain contact with Raymon,
when it is Raymon’s obligation to promptly step forward to
assume full parental responsibilities and show emotional
support.
A. The Trial Court Erred in Excluding Exhibit P-107.
1. Applicable Law and Standard of Review
A writing must be authenticated before it may be admitted
into evidence. (Evid. Code, § 1401, subd. (a).) A photograph or
screenshot is a writing; a text message is also a writing. (Id.,
§ 250.) “Authentication of a writing means (a) the introduction of
evidence sufficient to sustain a finding that it is the writing that
the proponent of the evidence claims it is or (b) the establishment
of such facts by any other means provided by law.” (Id., § 1400.)
22
The author’s testimony is not required to authenticate a writing
(id., § 1411); instead, authenticity may be established by the
contents of the writing (id., § 1421) or by witness testimony
(People v. Goldsmith (2014) 59 Cal.4th 258, 268) or by other
means (Evid. Code, § 1410 [no restriction on “the means by which
a writing may be authenticated”]). “The foundation requires that
there be sufficient evidence for a trier of fact to find that the
writing is what it purports to be, i.e., that it is genuine for the
purpose offered. [Citation.] Essentially, what is necessary is a
prima facie case. ‘As long as the evidence would support a
finding of authenticity, the writing is admissible. The fact
conflicting inferences can be drawn regarding authenticity goes to
the document’s weight as evidence, not its admissibility.’ ”
(People v. Goldsmith, at p. 267.) Like any other material fact, the
authenticity of a document may be established by circumstantial
evidence. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.)
A trial court’s ruling admitting or excluding evidence is
reviewable for abuse of discretion, and will not be “disturbed
except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.” (See People v. Rodriguez
(1999) 20 Cal.4th 1, 9–10.) Discretion must be exercised “ ‘in
conformity with the spirit of the law’ ” and not “ ‘defeat the ends
of substantial justice.’ ” (People v. Jacobs (2007) 156 Cal.App.4th
728, 740–741.) “[T]he abuse of discretion standard does not allow
trial courts to apply an incorrect rule of law.” (County of Kern v.
T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 316.)
2. Analysis
We agree with appellants that the trial court abused its
discretion in excluding exhibit P-107.
23
A party proffering photographs (e.g., screenshots of text
messages) as evidence must authenticate that evidence. (People
v. Calhoun (2019) 38 Cal.App.5th 275, 314–315; People v. Perez
(2017) 18 Cal.App.5th 598, 621; People v. Cruz (2020)
46 Cal.App.5th 715, 730.) We conclude Jessica’s testimony and
the identifying information on the exhibit itself were sufficient to
authenticate the text message.
Here, Jessica testified she had remained in contact with
Rubye during the aftermath of Jessica and Raymon’s breakup.
Jessica testified she knew Raymon “threatened to kill [her] and
[her] unborn child” and referred to a screenshot she received from
Rubye concerning “a communication by [Raymon] that contained
threats” against Jessica.
The contents of exhibit P-107 contained identifying
information consistent with Raymon’s own testimony and other
admitted evidence. For instance, by his own admission, the
telephone number in the screenshot belonged to Raymon. At
both his April 15, 2024 deposition and at trial, he verified the
phone number (650) 458-xxxx was his. During trial on November
6, 2024, the court verified with both parties’ counsel that the
telephone number in the screenshots had been authenticated as
Raymon’s. The telephone number was saved with the contact
name “Lil Big Brother”—which Raymon himself testified
“[d]efinitely my little sister calls me that sometimes.”
Additional evidence supported the conclusion that exhibit
P-107 was self-authenticating per Evidence Code section 1421.
“A writing may be authenticated by evidence that the writing
refers to or states matters that are unlikely to be known to anyone
other than the person who is claimed by the proponent of the
evidence to be the author of the writing.” (Evid. Code, § 1421,
24
italics added.) For instance, the references in the text messages
to Jessica, the fact that she “left” him, and the author’s fear that
she was cheating on him, were corroborated by other
unchallenged evidence. Raymon testified at trial that he
“acknowledge[d] and admit[ted] that . . . after Jessica left [him],
[he] accused her of having left [him] for somebody else.” The text
messages refer to the author having called Jessica from other
individuals’ telephones, a fact that Raymon admitted during his
testimony at trial. It was also self-authenticating given its
content that mentioned Jessica was pregnant (“I ho she die and
that baby she carrying die”), which Raymon had discovered on
September 7, 2021. (Italics added.) All of this qualifies as
“witness testimony, circumstantial evidence, content and
location” that supplies authentication of the screenshot itself.
(People v. Goldsmith, supra, 59 Cal.4th at p. 268; see People v.
Valdez, supra, 201 Cal.App.4th at p. 1435; see also People v.
Flinner (2020) 10 Cal.5th 686, 729 [“ ‘ “[A] writing can be
authenticated by circumstantial evidence and by its
contents” ’ ”].)
The trial court was mistaken in concluding Rubye’s
testimony was required to authenticate exhibit P-107 merely
because it was Rubye who had sent the screenshots to Jessica.
“The author’s testimony is not required to authenticate a
document.” (People v. Valdez, supra, 201 Cal.App.4th at p. 1435;
see also People v. Perez, supra, 18 Cal.App.5th at pp. 619, 621.)
The trial court’s belief that Rubye’s testimony was necessary was
erroneous, and its ruling that the screenshots were not
authenticated was error.
25
Once authenticated, the exhibit was admissible for both a
hearsay and a non-hearsay purpose—not just to show the truth of
Raymon’s threats, but also Jessica’s mental state and her
reasonable fear of Raymon. Her state of mind was relevant to
explain why Jessica often refused to communicate with Raymon
and even lied about the pregnancy and birth. If Raymon had
known of the pregnancy, he would have inevitably been thrust
back into her life, and according to her would have exposed
Jessica and the unborn child again to Raymon’s violent and
abusive behavior. Even if little weight were to be given to her
explanation, at a minimum it provided context for her acts that
may have otherwise interfered with Raymon’s ability to support
her pregnancy and X.D. “When an out-of-court statement is
offered for any relevant purpose other than to prove the truth of
the matter stated, the statement is not hearsay” and can be
received for that limited purpose. (People v. Wilson (2021)
11 Cal.5th 259, 305.)
Exhibit P-107 was also admissible for the truth of the
matter under various hearsay exceptions. Evidence of a
statement made by a witness who is a party opponent, as
Raymon was to the adoptive parents, is not made inadmissible by
the hearsay rule. (See Evid. Code, § 1220.)12 To the extent the
trial court was concerned about multiple hearsay—Raymon to
Rubye to Jessica—each level of communication was either not
12 Evidence Code section 1220 provides: “Evidence of a
statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a party
in either his individual or representative capacity, regardless of
whether the statement was made in his individual or
representative capacity.”
26
hearsay or subject to an exception. Once authenticated, the
statement (i.e., the text from Raymon to Rubye) was hearsay but
qualified as an exception for a statement of a party opponent.
The next statement (the screenshot sent from Rubye to Jessica)
was offered for the effect it had on Jessica’s state of mind and her
conduct regarding communication with Raymon about X.D.
Exhibit P-107 was also admissible to prove the truth of the
matter—that Raymon had in fact not provided emotional and
financial support for Jessica and X.D. in utero. His threats and
other statements were the antithesis of what Kelsey S. requires of
a father. (Kelsey S., supra, 1 Cal.4th at p. 849; Adoption of
Michael H. (1995) 10 Cal.4th 1043, 1055 (Michael H.).)
Finally, the evidence was admissible to prove Raymon’s
state of mind, both during the time Jessica was pregnant and, by
inference, how he was likely to act in the future. (See Evid. Code,
§ 1250, subd. (a)(1); People v. Flores (2020) 9 Cal.5th 371, 410.)
Raymon’s brief refers to exhibit P-107 as “very prejudicial,”
but he does not fully develop that argument. His reference to
Evidence Code section 352, however, is sufficient for us to
address the point on appeal.13 Not every damaging piece of
evidence is prejudicial under the Evidence Code. (People v.
Doolin (2009) 45 Cal.4th 390, 439.) Prejudice as contemplated by
Evidence Code section 352 “ ‘is not so sweeping as to include any
evidence the opponent finds inconvenient. Evidence is not
13 Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
27
prejudicial, as that term is used in [an Evidence Code] section
352 context, merely because it undermines the opponent’s
position or shores up that of the proponent. The ability to do so is
what makes evidence relevant. The code speaks in terms of
undue prejudice. Unless the dangers of undue prejudice,
confusion, or time consumption “ ‘substantially outweigh’ ” the
probative value of relevant evidence, [an Evidence Code] section
352 objection should fail. (People v. Cudjo (1993) 6 Cal.4th
585, 609.) “ ‘The “prejudice” referred to in Evidence Code section
352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues.’ ” ’ ” (People v. Doolin, at
pp. 438–439.) Here, there was damaging evidence both ways—
death threats, drugs, lies, manipulation, physical violence.
Jessica kept the details of her pregnancy from Raymon and even
lied to him about X.D.’s existence. This was all damaging to one
side or the other. The screenshots at a minimum gave an
explanation for Jessica’s conduct—that she was afraid that
Raymon would act on his threats of bodily harm, even death to
her and X.D. It was also relevant on the key issue in the case—
whether Raymon qualified as a Kelsey S. father.
We have no doubt that the experienced trial court was fully
capable of not being unduly prejudiced—the standard set by
statute—by the evidence put forward by either side. Exhibit
P-107 was admissible on several grounds, and it was directly tied
to the key ultimate issue of whether Raymon was a Kelsey S.
father. It was error to exclude it.
28
B. Substantial Evidence Did Not Support the Trial
Court’s Determination that Raymon Was a Kelsey S.
Father.
1. Applicable Law and Standard of Review
“An unwed father’s rights and duties under the Uniform
Parentage Act of 1973 (UPA), adopted by our Legislature as
Family Code section 7600 et seq., substantially depend on
whether he is a ‘presumed father’ within the meaning of Family
Code section 7611.” (In re Tanis H. (1997) 59 Cal.App.4th 1218,
1228.) “Whether a biological father is a ‘presumed father’ . . . is
critical to his parental rights.” (Kelsey S., supra, 1 Cal.4th at
p. 823.) “In order to become a ‘presumed’ father, a man must fall
within one of several categories enumerated in Family Code
section 7611.” (Francisco G. v. Superior Court (2001)
91 Cal.App.4th 586, 595.)
It is undisputed here that Raymon is the biological father of
X.D. As for the statutory criteria, it is also undisputed that he
was not present at X.D.’s birth and did not sign a voluntary
declaration of paternity. Where, as here, a biological father does
not fulfill the statutory criteria to qualify as a presumed father,
he may nevertheless attain parental rights equal to those of the
mother by showing he promptly stepped forward to assume full
parental responsibilities for the child’s well-being, including a
financial, emotional and other commitment; such an individual is
often referred to as a Kelsey S. father. (Kelsey S., supra,
1 Cal.4th at p. 849.)
Kelsey S. was a private adoption case in which an unwed
father was prevented from taking the child into his home, and
thereby prevented from becoming a presumed father under the
predecessor version of section 7611, subdivision (d). (Kelsey S.,
29
supra, 1 Cal.4th at pp. 821–822, 825.) The biological father
sought custody of the infant within two days of the child’s birth;
about the same time, the child’s mother placed the baby with
prospective adoptive parents. (Id. at p. 822.) Our Supreme Court
essentially created a new class of recognized fathers in
California—the Kelsey S. father.
To satisfy Kelsey S. criteria, a child’s biological father must
show first, that he promptly stepped forward to assume full
parental responsibilities for his child’s well-being; second, the
child’s mother or some third party thwarted his efforts to assume
his parental responsibilities; and third, a willingness to assume
full custody of the child. (Kelsey S., supra, 1 Cal.4th at p. 849.)
In deciding whether an individual biological father qualifies, trial
courts are to consider “all factors relevant to that determination.
The 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 birth expenses
commensurate with his ability to do so, and prompt legal action
to seek custody of the child.” (Ibid., fn. omitted.)
The Supreme Court addressed this issue once more three
years later in Michael H., and clarified that a biological father
cannot qualify as a Kelsey S. father “unless he ‘promptly’
demonstrated a ‘full commitment’ to parenthood during
pregnancy and within a short time after he discovered or
30
reasonably should have discovered that the biological mother was
pregnant with his child, and that he cannot compensate for his
failure to do so by attempting to assume his parental
responsibilities many months after learning of the pregnancy.”
(Michael H., supra, 10 Cal.4th at pp. 1054–1055.)
Kelsey S. also held that merely seeking to block adoption by
others is insufficient. (Kelsey S., supra, 1 Cal.4th at p. 849.)
“This is so because ‘the mere existence of a biological link does
not merit . . . constitutional protection’ [citation]; rather, the
federal Constitution protects only the parental relationship that
the unwed father has actively developed by ‘ “com[ing] forward to
participate in the rearing of his child” ’ [citation] and ‘act[ing] as
a father.’ ” (Michael H., supra, 10 Cal.4th at p. 1052.)
A determination under Kelsey S. is fact specific. On appeal,
in reviewing a decision as to whether a parent meets the
requirements of Kelsey S., we review the factual findings for
substantial evidence and “[t]o the extent that the issue is a mixed
question of law and fact, we exercise our independent judgment
in measuring the facts against the applicable legal standard.”
(Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1539.)
Substantial evidence is reasonable, credible evidence of solid
value such that a reasonable trier of fact could make the findings
challenged. (Adoption of Emilio G. (2015) 235 Cal.App.4th 1133,
1145 (Emilio G.).) In the trial court, “[t]he 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.) On appeal, appellants must show the
evidence is insufficient to support the trial court’s findings.
(Emilio G., at pp. 1144–1145.)
31
2. Analysis
In determining whether the evidence is sufficient under
this standard, we include in our record review exhibit P-107. As
we have discussed, this evidence should have been admitted at
trial. In that light, we conclude substantial evidence does not
support the trial court’s finding that Raymon met his burden to
show he is a Kelsey S. father.
The man seeking the Kelsey S. presumption “must
demonstrate a full commitment to his parental responsibilities
within a short time after he learned that the biological mother was
pregnant with his child.” (In re Elijah V. (2005) 127 Cal.App.4th
576, 583, italics added, citing Michael H., supra, 10 Cal.4th at
pp. 1055, 1060 & Kelsey S., supra, 1 Cal.4th at p. 849.) Kelsey S.
itself makes clear that for the presumption to apply, the unwed
biological father must “promptly” come forward to show his full
commitment to parental responsibilities. (Kelsey S., at p. 849.)
We first discuss the timing of Raymon’s actions as Kelsey S.
contemplates. Here, Raymon learned that he and Jessica were
expecting a child on September 7, 2021. After the physical
violence on September 21, 2021, and for the next 14 months,
Raymon received no updates from Jessica about the status of the
pregnancy or unborn child until November 2022 when she falsely
told him that the baby “is not here no more” (even though X.D.
had already been born and was six months old). During that
14-month period, Raymon made no meaningful efforts to
investigate or verify the status of the pregnancy or assert his
parental rights. His only actions were occasional text messages
inquiring about the unborn child. The evidence was that, at
most, father was passive in his inquiries and never demonstrated
a prompt, timely, consistent, and substantial commitment to
32
parenthood. Notably, when Jessica told him that the baby “is not
here no more,” Raymon did not follow up with any clarifying
questions—he did not ask, “Did you miscarry?” or “Did you have
an abortion?” or “Did you place the child for adoption?” Rather,
he accepted the vague statement at face value and made no effort
to understand what had happened to the child.
Raymon’s duty to investigate aside, the evidence is almost
uncontradicted that, not only was Raymon unsupportive of
Jessica emotionally during her pregnancy, his actions were also
both physically and emotionally harmful to her. On September
21, 2021, two weeks after learning Jessica was pregnant, Raymon
hit Jessica directly in the face causing a bloody lip. This assault
occurred while Jessica was sitting next to four-month-old Ray in
the back seat of a car. In Emilio G., the appellate court
concluded a similar act of domestic violence was, under Kelsey S.,
“not emotionally supportive” and “actually harmful to [the
mother].” (Emilio G., supra, 235 Cal.App.4th at pp. 1138, 1145.)
In Emilio G., the car was stopped when the assault occurred. (Id.
at p. 1138.) Here, the car was actually moving when the domestic
violence took place, which placed pregnant Jessica, the unborn
child, and baby Ray at significant risk of serious harm.
Raymon did not follow Jessica to the fast-food restaurant
and check on her well-being or that of the unborn child; instead,
he drove off, more concerned, as he admitted at trial, about facing
the police. It was Raymon’s domestic violence that prompted
Jessica to seek sanctuary for her and her baby for about year and
a half, first at her friend Angie’s house, then at a DV shelter, and
finally at a sober living center for women and children. In her
evaluation report, Dr. Kaser-Boyd found the “issues of greatest
concern . . . are the domestic violence of [Raymon] towards
33
Jessica, and his earlier case involving sexual offenses. I
understand that he choked Jessica while she was pregnant and
this is quite a high level of domestic violence and disregard for
the safety of his child.” (Italics omitted.) To the extent Raymon
found it difficult to contact Jessica over the next many months, it
was his drug abuse, violence, and threatening actions that put
this in motion. 14
Throughout Jessica’s first trimester, Raymon threatened
Jessica and accused her of having an affair. On September 24,
2021, while Jessica was in the DV shelter Raymon left her a
voicemail, stating, “Answer my fucking phone calls. You selfish
bitch. . . . I swear to God . . . I’m doing everything I can to hurt
you, bruh.” (Italics added.) He left Jessica messages telling her
he hated her and called her derogatory names like “dyke” and
“selfish bitch.” (See Adoption of Arthur M. (2007)
149 Cal.App.4th 704, 721 [“name-calling, i.e., ‘slut,’ ‘bitch,’ and
‘whore,’ . . . found . . . to be distinctly unsupportive and
emotionally degrading”].) About a month later, Rubye sent
Jessica screenshots (exhibit P-107) of Raymon accusing Jessica of
cheating and stated, in part, “cheating bitch when I ketch her
ima kill that selfish bitch I hate her with all my hear I swea[r] I’ll
go to jail for life cheating ass bitch fuck everything ima make that
14 The trial court found Jessica acted reasonably after the
incident in the car. “The Birth Father’s conduct of slapping Birth
Mother on September 21, 2021, caused her to leave the
relationship. This court finds that Birth Mother had every right
to leave Birth Father after he slapped her because domestic
violence is unhealthy in any relationship, and a child’s emotional
and psychological well-being can be negatively impacted by
witnessing domestic violence.”
34
bitch hurt that bitch is my enimie I ho she die and that baby she
carrying die evel bitch.” (Italics added.)
Although “Kelsey S. and its progeny do not require the
biological father to ‘love or dote on the mother, propose marriage
to her, or be a compatible mate,’ it is required ‘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.’ ” (Emilio G., supra, 235 Cal.App.4th at p. 1145.)
Raymon’s actions and statements were not those of an
emotionally supportive partner; far from it. His conduct cannot
be reconciled with the obligation of a Kelsey S. father to
demonstrate a prompt and full commitment to his parental
responsibilities.
Raymon argues that while his “behavior was not perfect, he
tried to be emotionally supportive in his own way.” He refers to
evidence of his apologies to Jessica; however, apologies for acts of
domestic violence are not affirmative support for a pregnant
woman. Raymon’s apologies do not carry much weight given as
they are part of the ongoing “cycle of violence” commonly found in
domestic violence cases. (See, e.g., People v. Humphrey (1996)
13 Cal.4th 1073, 1079 [“[t]he cycle included phases of tension
building, violence, and then forgiveness-seeking in which [he]
would promise not to batter [her] any more”].) The evidence
showed that Raymon’s promise he “won’t do that again” was
similar to his prior apologies “after all the incidents of abuse.”
The sporadic text messages and voicemails from Raymon
during Jessica’s pregnancy (where he hoped the “pregnancy is
going smooth” and was “thinking of [Ray] every day, even my
unborn, if there still is an unborn”) are legally insufficient to
establish the required showing of emotional support, especially in
35
light of the physical violence and threats to hurt or kill Jessica
and her unborn baby.
Nor did Raymon seek to establish parental rights once he
realized Jessica was not responsive to his requests for updates
regarding their unborn child. The circumstances in Adoption of
H.R. (2012) 205 Cal.App.4th 455 are analogous. In that case, the
mother and father had a “rocky” relationship that included
allegations of physical abuse, and upon the end of their
relationship, mother told father to leave her prenatal care
appointment and “changed the paperwork so that he received no
further medical information about the pregnancy.” (Id. at
pp. 458–459.) The mother then ceased all contact with the father
and contacted an adoption agency and selected adoptive parents.
(Id. at p. 459.) The father took legal action. When the mother
was approximately six months pregnant, the father filed a
petition to establish a parental relationship and sought a DNA
test to establish his paternity. (Ibid.) Raymon could have done
the same once he stopped receiving any updates or information
about the pregnancy. (Id. at p. 457 [“Long before minor was born,
father had sought to establish his parental rights.”].) Raymon
knew from experience how to invoke the court’s jurisdiction—
having filed in 2015 a petition for custody of, and visitation with,
his daughter. Like the father in Adoption of H.R., early on
Raymon could have sought a DNA test or filed a petition to
establish his paternity of X.D. These legal avenues were
available to Raymon, yet he failed to pursue any of them until
after the adoptive parents brought legal action following X.D.’s
36
birth. (See also Adoption of Baby Boy W. (2014) 232 Cal.App.4th
438, 448 [father filed a paternity action before the child’s birth].) 15
Raymon relies heavily on Kelsey S.’s directive that trial
courts “consider whether petitioner has done all that he could
reasonably do, under the circumstances.” (Kelsey S., supra,
1 Cal.4th at p. 850.) He contends Jessica precluded him from and
interfered with his active assumption of parental duties. Raymon
contends that, given the circumstances, he did all he could do,
thus satisfying Kelsey S.
The Court of Appeal in Adoption of O.M. gave short shrift
to a similar argument. There, the biological father’s “ability to
demonstrate his commitment was impeded . . . by the predictable
consequences of his own criminal activity.” (Adoption of O.M.,
supra, 169 Cal.App.4th at p. 675.) The court held that the father
had not satisfied Kelsey S., in part, because “his own actions in
committing the parole violations, including the use of illegal
drugs, [had] led to his incarceration” and prevented him from
providing the requisite support. (Id. at p. 680.) We find that
reasoning applies here too. The evidence here shows Raymon’s
cocaine and alcohol use coupled with his physical and verbal
abuse of Jessica was the direct cause for her decision to leave him
15 Sixteen months before he took any legal action (by filing his
declaration opposing adoption), Raymon left voicemails to Jessica
and said, “I really don’t want to do this, bruh but you’re forcing
me bro, so I have to make a complaint and then from there, bro, I
have to do some type of shit with the court, but I really don’t
want to go there, bro.” The record does not contain any evidence
that during the relevant period Raymon sought custody or
visitation of his other son, Ray, who had lived with Jessica
exclusively from the time Raymon hit Jessica in the car.
37
and seek safety at a DV shelter. Jessica also received a voicemail
from Raymon on September 24, 2021, telling her, “You selfish
bitch. . . . I swear to God . . . I’m doing everything I can to hurt
you, bruh.” She then received from Rubye a screenshot where
Raymon threatened to bring harm to Jessica and the unborn
child. Domestic violence victims are allowed to insulate
themselves from their abuser. It was Raymon’s own threats,
misconduct, and violent behavior that drove Jessica to seek
safety and peace by distancing herself and their unborn child
from him. (See In re D.S. (2014) 230 Cal.App.4th 1238, 1246
[“We tend to agree that a father whose own bad decisions
preclude him from carrying out his parental responsibilities does
not satisfy the high bar set by Kelsey S.”].)
Raymon argues that he supplied financial support to
Jessica and X.D. The trial court found that Raymon “sent at
least over $7,400 for anything [Jessica] needed.” The record
supported that finding, but the evidence also was that the
support was for Jessica and Raymon’s other son, Ray—not for
X.D. Raymon left Jessica a voicemail on December 1, 2021,
telling her to use his EBT card “for you and my son [Ray].”
Raymon testified at trial that the money he sent to Jessica was
meant for her and Ray, not X.D. Raymon’s arguments to the
contrary on appeal, i.e., that he sent the money for the unborn
baby, are inconsistent with his claim that he did not know
whether Jessica was still pregnant. Raymon also contends that
the funds he sent Jessica for Ray simultaneously conferred an
incidental benefit on the unborn child as well; however, he
supplied no case authority that this so-called incidental benefit
satisfied the financial commitment factor of Kelsey S., and we
know of none. We also observe that, although Raymon learned of
38
X.D.’s existence when he was served with a notice of alleged
paternity on January 12, 2023, he did not contribute financial
support for X.D.’s benefit until a year later, on January 17, 2024,
when he sent Cliff and Rebecca a greeting card for X.D. with a
cashier’s check for $250.
Raymon is correct that after Cliff and Rebecca had
commenced adoption proceedings, he took steps to provide
support for X.D. and initiated legal proceedings to establish his
parental rights. However, Kelsey S. requires more than post hoc
efforts. The constitutional protection afforded to a biological
father’s inchoate parental interest depends on his ability to
demonstrate a prompt and full commitment to his parental
responsibilities beginning shortly after learning of the pregnancy.
(See Kelsey S., supra, 1 Cal.4th at pp. 849–850.) The evidence
here demonstrates Raymon did not. He failed to provide
emotional support, and his behavior actually placed Jessica and
the unborn child at substantial risk of physical harm. He
threatened to harm Jessica and to kill her and the unborn child.
His continued drug use in 2021, 2022, and 2023, further
underscored his lack of commitment to parental responsibilities.
His legal efforts and intermittent financial support came late and
do not reflect a showing of “unequivocal commitment to his
parental responsibilities.” (Adoption of Baby Boy W., supra,
232 Cal.App.4th at p. 452.)
We hold substantial evidence does not support the trial
court’s finding that Raymon met his burden under Kelsey S.
We thus reverse.
39
C. It is Not in X.D.’s Best Interest for Raymon to Retain
His Parental Rights.
“Where a natural father does not have presumed father
status under section 7611 or a constitutional right to block an
adoption under Kelsey S., ‘ “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” ’ ” (Adoption of A.S. (2012) 212 Cal.App.4th
188, 215, italics added) or that the child’s adoption be allowed to
proceed pursuant to section 7664, subdivision (b). The court, in
making this determination, “may consider all relevant evidence,
including the efforts made by the biological father to obtain
custody, the age and prior placement of the child, and the effects
of a change of a placement on the child.” (§ 7664, subd. (b).) In
contrast, if the court finds that “it is in the best interest of the
child that the biological father should be allowed to retain [his]
parental rights, the court shall order that the biological father’s
consent is necessary for an adoption.” (Id., subd. (c).) Because we
have concluded that on this record, Raymon is not a Kelsey S.
father, it is Raymon’s burden to prove that X.D.’s best interest
would be served by permitting Raymon to retain his parental
rights and not allow the adoption to proceed. (See Emilio G.,
supra, 235 Cal.App.4th at p. 1151; Adoption of A.S., at p. 218.)
Here, because the trial court found that Raymon was a
Kelsey S. father, it was not called upon to make findings as to
whether X.D.’s best interests would be served by permitting
Raymon to retain his parental rights and not allowing the
40
adoption to go forward. 16 (Adoption of A.S., supra,
212 Cal.App.4th at p. 218.) Appellants ask that we determine
X.D.’s best interests based on the existing record. Raymon
counters that the trial court is the factfinder and in the best
position to determine in the first instance whether it is in X.D.’s
best interests to allow the adoption to proceed.
On the present record, no reasonable trier of fact could find
that “it is in the best interest of [X.D.] that the biological father
retain parental rights” and that the adoption not be allowed to
proceed. (§ 7664, subd. (b).) Although the record that we have
cited in our opinion is overwhelming on the issue of best
interests, it is the uncontradicted evidence from expert Dr. Kaser-
Boyd’s evaluation report that best underscores the point. She
observed X.D.’s attachment to Cliff and Rebecca as “strong” and
that X.D. is “clearly very bonded to the prospective adoptive
parents.” (Italics omitted.) X.D. is now nearly three and a half
16 In contrast, when a father is found to be a Kelsey S. father,
the adoption may not go forward without the father’s consent
unless the court determines the Kelsey S. father is statutorily
unfit. (Adoption of H.R., supra, 205 Cal.App.4th at p. 466.) The
trial court understandably did not address either X.D.’s best
interests or whether Raymon was unfit. First, because the trial
court had found that Raymon was a Kelsey S. father, by statute it
was not required to determine X.D.’s best interests. Second, as
the court pointed out in its statement of decision, as of the
completion of trial, appellants had not requested a determination
of Raymon’s fitness as a parent.
Because we have concluded that the Kelsey S. finding here
was not supported by substantial evidence, the “statutorily unfit”
standard has no application. What remains is a determination of
X.D.’s best interests.
41
years old and, since his birth, “knows no other parents than
[Cliff] and Rebecca.” (Italics omitted.)
Dr. Kaser-Boyd’s report observed tellingly that, for a child
whose only parental bond since birth has been with adoptive
parents, a disrupted attachment at X.D.’s age may result in
“mourning and depression and long-term disruptions in trust and
security” that could “impact his ability to form a new attachment
to a caregiver.” (Italics omitted.) When this evidence is viewed
in light of Raymon’s commission of multiple acts of domestic
violence, his history of drug abuse, and other misconduct, a
reasonable trier of fact could not conclude that it is in X.D.’s best
interests for Raymon to retain his parental rights.
Section 7664 directs the court making a best interest
determination to consider factors including “the efforts made by
the biological father to obtain custody.” (Id., subd. (b).) As
discussed, this record shows that Raymon did not demonstrate
the prompt and full commitment required under Kelsey S. (See
Adoption of A.S., supra, 212 Cal.App.4th at p. 218.)
Raymon next argues that because the trial court permitted
him to visit X.D. twice a month via the court’s December 6, 2024
order (although it was not to be disclosed to X.D. that Raymon
was his biological father), the events of the past several months
should be taken into account. He cites In re Hunter S. (2006)
142 Cal.App.4th 1497, 1508, for the proposition that assessment
of best interests must include consideration of current
circumstances. 17 That determination, Raymon claims, should be
made following a hearing in the trial court.
17 Based on the trial court’s visitation order, Raymon
contends on appeal: “Presumably, those visits have been
occurring for the last seven months. . . . [X.D.] has presumably
42
We might agree if there was anything in the record—by
way of proceedings in the trial court after the notices of appeal
had been filed, or by way of an offer of proof or argument that
new facts suggest that it is actually in X.D.’s best interests to
stop the adoption and allow Raymon to preserve parental rights.
There is nothing of the sort in the record or in the briefs on
appeal. In light of the existing record and our conclusion that
Raymon is not a Kelsey S. father, any remand would be founded
on the speculation that a reasonable trier of fact could conclude
the adoption should not go forward. With this speculation on one
side, and the uncertainty and detriment that surely X.D. and the
prospective adoptive parents would experience if we authorized
further delay by way of another evidentiary hearing and
inevitable appeal, we conclude remand for a determination of
X.D.’s best interests is both unnecessary and inappropriate. (See
Adoption of Myah M., supra, 201 Cal.App.4th at p. 1543, citing
Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 258 [“ ‘For
young children and those children for whom adoptive parents are
available, adoption is usually the preferred placement because it
offers the prospect of a secure permanent home.’ ”].)
built some type of relationship with Father.” (Italics added.)
“Presumably” is not an offer of the existence of evidence.
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DISPOSITION
We reverse the order finding that Raymon is a Kelsey S.
father and direct the trial court, on remand, to enter an order
permitting the adoption to proceed.
CERTIFIED FOR PUBLICATION
RUBIN, J. *
We concur:
WILEY, Acting P. J.
VIRAMONTES, J.
* Retired Presiding Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
44