Adoption of T.K.

Filed 10/7/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Adoption of T.K., a Minor.

H.B. et al.,

Plaintiffs and Respondents, G050676

v. (Super. Ct. Nos. 13P001806 &

13AD000334)

D.N.,

OPINION

Defendant and Appellant;

K.K.,

Defendant and Respondent.

Appeal from an order of the Superior Court of Orange County, James L.

Waltz, Judge. Affirmed.

Marsha F. Lavine and Leslie A. Barry, under appointment by the Court of

Appeal, for Defendant and Appellant.

Douglas R. Donnelly for Plaintiffs and Respondents H.B. et al.

Michelle L. Jarvis, under appointment by the Court of Appeal, and Nicole

Williams for Defendant and Respondent K.K.

No appearance for the Minor.

I. INTRODUCTION

In Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), the Supreme

Court declared California’s statutory scheme precluding paternal rights for unwed fathers

unconstitutional in one – but only one – situation: If applied to “an unwed father who has

sufficiently and timely demonstrated a full commitment to his parental responsibilities.”

(Id. at pp. 849-850, italics added.) From the precise language used by the court in Kelsey

S. and as demonstrated by the holding in the later Supreme Court case of Adoption of

Michael H. (1995) 10 Cal.4th 1043 (Michael H.), there are at least two elements of “full

commitment”: (1) a demonstration of a willingness to financially support the child and

(2) a willingness – at least to the extent she makes possible – to emotionally support the

unwed mother during her pregnancy.

Here, we uphold the trial court’s conclusion appellant D.N. did not

demonstrate the full commitment required to establish either the financial or emotional

elements. He did not pay any of the mother’s (K.K.’s) substantial pregnancy expenses.

He did not, as was within his power, save up for the future expenses of supporting a

child. In fact, he raided the small fund the couple initially established for child expenses

and never paid it back. He even falsified his check book register to make it look like he

had sent money to her when he had not. As to emotional support, during the pregnancy

D.N. engaged in a campaign of cyber-stalking K.K. that in some instances bordered on

the downright creepy (creepy is K.K.’s word, not ours, but it seems apt). He showed up

at a medical appointment he would not have known about unless he had hacked into her

cell phone. When she had an appointment with an attorney to discuss this adoption case,

D.N. just happened to email the attorney at the moment that appointment commenced.

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He also used contact information from K.K.’s cell phone to try to block the adoption by

the prospective adoptive parents, H.B. and C.B (the B.’s).

Given the lack of a full financial commitment and the negative emotional

effect of the cyber-stalking during pregnancy, we cannot say the trial court erred in

concluding D.N. does not qualify as a “Kelsey S. father.” Accordingly, we affirm the

order terminating D.N.’s parental rights and freeing T.K. for adoption by the B.’s.

II. FACTS

The record is large. At trial, the prospective adoptive parents, the B.’s,

pulled out all the stops in their effort to show that D.N. did not merit the status of a

“Kelsey S. father.” The record thus contains personal details about K.K. and D.N.’s

relationship leading up to and during the pregnancy the world does not need to know.

But with a little self-restraint, we can limit our rendition of the facts to the parts that are

relevant. Because the trial court’s judgment may be upheld on the bases of D.N.’s less-

than-full commitment financially, plus the negative emotional effects of cyber-stalking,

our statement of facts will be largely confined to those two areas.1 And because conflicts

in the evidence are resolved in favor of the judgment, they are resolved here against D.N.

(See Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717 (Arthur M.).)

A. Financial Side of the Relationship, Phase One:

Events Until the August 8, 2013 Final Breakup

K.K. and D.N. began dating in June 2012. By February or March 2013 the

relationship had progressed to the point that they decided to conceive a child together.

But at that time D.N. was unemployed and had no fixed address. It would be a distortion

to say he was “homeless,” but he certainly was gathering no moss. He was sleeping at

1 The trial court added “sexual demands” made by D.N. on K.K. during the early stages of K.K.’s

pregnancy as a reason D.N. did not qualify as a Kelsey S. father. For the sake primarily of K.K.’s privacy, we see no

reason to perpetuate in a published opinion the salacious and embarrassing details supporting that finding. Suffice

to say that D.N.’s inadequate financial commitment and cyber-stalking are enough to support affirmance of the trial

court’s determination and this opinion should not be read as relying on more.

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friends’ homes, his grandmother’s place in San Diego, and even sometimes in K.K.’s car

parked on the street.

For her part, K.K. lived at her parents’ home and worked as a receptionist

in a dental office. With the mutual decision to become pregnant, K.K. immediately

prodded D.N. to get a job. Soon she lamented in a text message that he was doing

nothing to find employment.

Their child, T.K., was born in late January 2014. Working back nine

months suggests the child was conceived in late April 2013. K.K. tested positive for

pregnancy on May 20, 2013. Sadly, the couple had broken up the day before.

The news of the pregnancy prompted a reconciliation. Still, K.K. was none

too impressed with D.N.’s financial efforts up to that point. Among her first

communications to D.N. upon receiving news of the pregnancy was another request he

get a job.

K.K. endeavored assiduously to instill in D.N. a sense of urgency about

employment. On May 29, she noted he was not making an effort to find work, and told

him to “grow up.” She expressed the same sentiment on June 5, and made the point he

had now had four months to get a job but had not. She stressed that his finding

employment was no luxury. In a message dated June 6, 2013, she said “I can’t afford

these bills already for my health,” and reiterated her disappointment D.N. was still not

working.

Two weeks later, on June 21, 2013, he found a job, as a car salesman. The

couple set up a “baby fund” and D.N. made a $200 deposit. But he withdrew $160 of

that on August 1. There is nothing in the record or his briefing to indicate he ever

restored the money. Indeed, when he did not have $200 he said was necessary for a

dental cleaning in July, he borrowed the money from K.K. That money, like the baby

fund, would never be paid back.

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D.N. finally found stable housing around July 1 in a room in a condo, but

K.K. had to lend him her credit card to pay for a credit check. Then he forgot to

terminate the credit-check company contract, so K.K. ended up paying $90 for credit

check charges before she took it upon herself to terminate the contract in December.

D.N. did not have the money to pay the deposit for his new digs so he had to borrow the

money for that, though not from K.K. And since he had been driving around with a

suspended drivers’ license since 2010, he had to borrow the money (though again, not

from K.K.) to restore his license.

B. General Financial Evidence After the August Breakup

In addition to what we have already recounted about D.N.’s job efforts in

the period May 20 through June 21, the court heard evidence concerning D.N.’s

commitment to financial support in the period after August. K.K. testified her total

medical bills during the pregnancy amounted to around $26,000, and she spent about

$3,000 on clothes. On appeal D.N. makes no effort to show he paid for any significant

portion of those amounts despite having had a job since June 21. K.K. testified he never

paid for any maternity clothes or baby items. He did make phony entries in his check

register to support a claim he sent her checks totaling $900. The ruse was uncovered

when he refused to turn over his bank records prior to the trial, and those records had to

be subpoenaed for the trial. Had such checks been given to K.K., he had insufficient

funds in his account to cover them.

C. Cyber-Stalking After the August Breakup

We will not attempt to figure out (and neither did the trial court) how many

times K.K. and D.N. broke up and reconciled in the period from the time they began

dating in June 2012 through August 8, 2013. We can say with certainty that they broke

up for the last time on August 8, 2013, at K.K.’s behest. D.N. professed shock at the

news.

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Though no longer an item with K.K., D.N. began (or maybe the better word

would be “continued”) cyber-spying on her.2 There would be evidence at trial via an

expert in cell phones that by knowing K.K.’s login and password for her iCloud phone,

D.N. was able to track her whereabouts.

In the period after August 8, despite K.K. changing her passwords no less

than five times, D.N. was able to know where she was much of the time. In October, for

example, when she traveled with a male friend to San Diego, D.N. called the friend, and

asked him to give the phone to K.K. so she could speak with him.

D.N. also used his access to K.K.’s phone to obtain the phone numbers of

the first couple who expressed an interest in adopting the child. He made it clear to them

he would oppose the adoption. An oppositional father was enough to cause them to lose

interest.

A second couple, the B.’s, were located as potential adoptive parents in

early October, 2013. D.N. used the contact information on K.K.’s phone to call them as

well and to reiterate his opposition to any adoption. He would later send an email to

them falsely claiming K.K. had used cocaine, marijuana and alcohol during her

pregnancy. The B.’s, however, were not intimidated and continued their efforts through

the trial.

The cyber-stalking “creeped out” K.K. Perhaps the worst of it occurred in

mid-December (and we note here that K.K. was about eight months pregnant at this

point) when she went to see an attorney and, while she was visiting that attorney, he got

an email from D.N. asking the attorney about representing him. We note that D.N.

already had an attorney at that time, so the trial judge was certainly not being

unreasonable in discounting D.N.’s later protestation that he was just emailing every

2 Even before the breakup D.N. had established a pattern of such spying. Back on May 14 (before

the May 19 breakup), D.N. had figured out that K.K. bought someone else a drink, because he texted her about the

purchase on the theory that one drink doesn’t normally cost $23.

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attorney in the county who did adoption work that particular day. A similar incident

occurred about two weeks later, when K.K. went to a medical appointment that only her

mother knew about. D.N. showed up in the parking lot.

The final instance of cyber-stalking occurred just prior to the birth. K.K.

went to the hospital for an induced labor. The procedure had been kept secret but D.N.

still showed up. He had to be escorted out.

D. Evidence Favorable to D.N.

At the trial, D.N. presented uncontradicted evidence he took a parenting

class. He read multiple books on parenting. He purchased baby supplies and set up a

nursery in the condominium where he lived. He obtained life and health insurance. He

made arrangements for a pediatrician and a day care provider. D.N. also testified that

while K.K. initially said he should give her money for the sake of her health, sometime

later she indicated that because third parties would be paying her medical bills, it wasn’t

necessary for him to pay them.

III. DISCUSSION

A. Standard of Review

An unwed father seeking Kelsey S. status has the burden of showing by a

preponderance of the evidence that he qualifies. This rule is inherent in Kelsey S. itself.

Kelsey S. is a constitutional law decision involving an as-applied challenge to a state

statutory scheme. And it is garden variety constitutional law that a party challenging the

constitutionality of a law as applied has the burden of “evincing facts” showing the

application is unconstitutional. (Associated Homebuilders v. City of Livermore (1961)

56 Cal.2d 847, 854; accord, Coffman Specialties, Inc. v. Department of Transporation

(2009) 176 Cal.App.4th 1135, 1145 [“On an as-applied challenge, the plaintiff must plead

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and prove the specific facts giving rise to the alleged constitutional violation.”].)3 The

burden was thus on D.N. to show enough facts to bring himself within Kelsey S. status,

not on K.K. or the B.’s to show he did not qualify.

B. Financial and Emotional Commitment

Kelsey S. said our state paternity law is unconstitutional “only to the extent

it is applied to an unwed father who has sufficiently and timely demonstrated a full

commitment to his parental responsibilities.” (Kelsey S., supra, 1 Cal.4th at pp. 849-850,

italics added.) The court went on to encapsulate its narrow holding in this oft-quoted

sentence: “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.” (Id. at p. 849, italics added.)

Because Kelsey S. was a case in which the trial court merely applied an

existing statutory scheme which, by itself, barred any paternity claim by the unwed

father, the case did not go into detail as to whether the plaintiff father there actually

qualified under the full commitment test. What was meant by full financial and

emotional commitment remained inchoate.

Full emotional commitment was a feature of the Supreme Court’s next

foray into the area of an unwed father’s parental rights, Michael H. There, an unwed

father did everything he possibly could to demonstrate the full commitment contemplated

3 At least two other appellate opinions, Adoption of H.R. (2012) 205 Cal.App.4th 455, 466 (H.R.)

and Adoption of O.M. (2008) 169 Cal.App.4th 672, 679 (O.M.), also declare the burden is on the unwed biological

father to show parental status under Kelsey S. but derive the rule a different way. H.R. simply cited O.M., which in

turn cited a dependency case, In re T.R. (2005) 132 Cal.App.4th 1202, 1210 (T.R.) and T.R. in turn cited In re

Spencer W. (1996) 48 Cal.App.4th 1647, 1653. Spencer W. was a case that centered on whether a man showed

enough facts to fit within a pre-existing statutory presumption of fatherhood based on his taking a child into his

home and holding the child out as his own (see Fam. Code, § 7611, subd. (d)). For this statutory burden-allocation

rule, Spencer W. cited Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th

501, 545 (Xebec). Xebec was a liability insurance coverage case involving the question of whether a settlement

between the insured and a third party established the insured’s damages for purposes of its insurance claim.

Regardless of the route taken, we are convinced this is the correct analytical destination.

All further undesignated statutory references are to the Family Code.

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by the Kelsey S. court – except he did not promptly signal an intent to oppose an adoption

in the months just after he learned of the pregnancy. (Michael H., supra, at p. 1060.)

Rather, he went along with the mother’s plan to adopt the child out, but changed his mind

about five months later. While the trial and appellate courts thought he had done enough

to qualify for Kelsey S. father status (id. at pp. 1049-1050), the Supreme Court reversed.

The Michael H. court emphasized the father’s indifference in the “short time” after he

learned of the pregnancy. (Id. at p. 1060.)

In the case before us there is substantial evidence D.N. did not demonstrate

a “full” commitment to either the financial or emotional elements of the Kelsey S. test.

Financially, when K.K. and D.N. decided to have a child together by March 2013, D.N.

was transient and unemployed, yet he took what the trial court could reasonably have

considered a lackadaisical approach to job hunting until sometime in June, at which point

he did buckle down and find a job and a fixed abode. (See Adoption of A.S. (2012) 212

Cal.App.4th 188, 212 [noting father had, among other things, a “‘laissez faire attitude’”

toward support of mother “emotionally or financially”].) D.N. showed himself

financially irresponsible in his dealings with K.K. by borrowing money from her and

never paying it back (despite getting a job at a car dealership in June), failing to close his

credit check account and causing her to incur liability for it, and withdrawing the major

part of the $200 he put in the baby fund. And the false entries in his checkbook for

checks of $400 and $500 demonstrate not only that (1) he didn’t make payments to

support his child’s mother in her pregnancy, but (2) he wanted to create a false

impression of having made payments.4 Children do not get fed and clothed on false

checkbook entries, but courts may reasonably consider them in determining a putative

parent’s commitment.

4 We recognize the imaginative allusion to the musical Chicago in D.N.’s reply brief, but if there

has been any “flim flam flummox[ing]” going on in this case, it is to be found in D.N.’s own checkbook entries.

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As to the emotional element, we cannot ignore the negative effects of the

cyber-stalking. There is no question it added to the stress of K.K.’s pregnancy. It seems

the opposite of the emotional support required of would-be Kelsey S. fathers. (See Arthur

M., supra, 149 Cal.App.4th at p. 721 (Arthur M.) [name calling by father was “distinctly

unsupportive and emotionally degrading” and hence father did not measure up to “the

Kelsey S. and Michael. H. standards”].) We further noted that D.N.’s fixation on

knowing K.K.’s whereabouts often had no relationship with any well-being on the part of

his unborn child, but centered on efforts to “‘block adoption by others.’” (Kelsey S.,

supra, 1 Cal.4th at p. 849, quoting In re Racquel Marie X. (1990) 76 N.Y.2d 387, 408.)

All in all, we think the record replete with support for the trial court’s judgment.

C. The “Catch-22” Problem in Kelsey S. Jurisprudence

In her dissent in Michael H., Justice Kennard identified an inherent

practical problem facing all would-be Kelsey S. fathers: What if the efforts of the unwed

father to demonstrate his full commitment to parenthood themselves cause emotional

distress to the pregnant unwed mother?5 The problem was later dubbed a Catch-22 by

the court in Adoption of Baby Boy W. (2014) 232 Cal.App.4th 438, 460 (Baby Boy W.),

and used by that court to excuse the would-be father’s “social media campaign.” The

father’s campaign involved taking his disagreement with the mother’s preference for

adoption to two public websites, Facebook and Change.Org.6 The Baby Boy W. court

said the campaign was “ill-conceived and poorly executed,” but nevertheless did not

5 “The majority’s decision creates a dilemma for a biological father: if in the early stages of the

mother’s pregnancy he 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., supra, 1 Cal.4th 816. 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.” (Michael H., supra, 10 Cal.4th at pp. 1068-1069 (dis. opn. of Kennard, J.).)

6 The campaign itself began after the trial court stayed the father’s proceedings. The father then

initiated an online petition campaign urging a change in California law on the Change.Org site and created a related

Facebook page “Help me Keep my Child From Being put up for Adoption,” which itself, said the appellate court

opened a “Pandora’s Box of hurtful commentary from uninvolved third parties.” (See Baby Boy W., supra, 232

Cal.App.4th at p. 461 and pp. 448-449.)

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disqualify the father from Kelsey S. status. (Id. at p. 461.) Thus in affirming a finding

that an unwed father did qualify under Kelsey S., the Baby Boy W. court said the social

media campaign was only in response to the unwed mother’s attempt to terminate his

rights, and only then in the context of their becoming litigation adversaries. Thus, it

could not be counted against him in regard to the requirement he show emotional support

for the unwed mother.

But unwed fathers have options even in the face of the Catch-22 arising out

of an unwed mother’s opposition to the father’s assertion of parental rights. If, as in the

case before us, it appears the unwed mother refuses, after a certain point, to take money

from the unwed father, the father can still open a dedicated bank account and make

regular deposits into it in order to demonstrate he is putting money away for the day

when, given the logic of his legal position, he must be prepared to assume all financial

responsibility for the child. (See Kelsey S., supra, 1 Cal.4th at p. 849 [stressing father

must be willing to assume “‘full custody of the child’”].) If an unwed father’s assertion

of full commitment to the responsibilities of parenthood means anything, it means he

must be prepared to support the child in his own home with his own resources (see

Helgestad v. Vargas (2014) 231 Cal.App.4th 719, 735) or, if for some reason the child

were one day to live outside his home, by paying child support. As our Legislature

declared in section 4053, subdivision (a): “A parent’s first and principal obligation is to

support his or her minor children according to the parent’s circumstances and station in

life.” A bank account can, after all, be established unilaterally without interfering with

the unwed mother’s pregnancy and shows tangible proof that the prospective Kelsey S.

father really has put his money where his mouth is. In this case, however, D.N. did not

open any account on his own in order to make regular deposits into it. In fact, he

withdrew 80 percent of the meager joint account that was opened. Obviously the couple

had discussed the idea of a dedicated joint account, but D.N. must have rejected the idea

with regard to his own money.

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Likewise, even if the prospective Kelsey S. father is not allowed contact

with the mother, he can show emotional support by doing no harm. If the mother does

not want any contact, so be it. But the father need not create gratuitous emotional

distress by calling the mother bad names (as in Arthur M.), or, as in the case before us,

indulging in a form of stalking. We would add here that D.N.’s cyber-stalking of K.K. in

this case is different from the social media campaign the trial court excused in Baby Boy

W. That campaign was launched after the litigation began. Here D.N. cyber-stalked

K.K. throughout her pregnancy. And we note the social media campaign in Baby Boy W.

was intermediated by public websites such as Facebook and Change.org. D.N.’s

campaign here was based on computer hacking stealthily directed at K.K.’s whereabouts.

It was directed spang at her, giving her the sense there was nowhere she could hide. This

is not just a failure of emotional support, this is the opposite of it.

D. The H.R. Case

What we have already said is sufficient to establish there was no error here

on the trial court’s part in finding the D.N. did not qualify for Kelsey S. fatherhood. D.N.

did not demonstrate a full commitment on either the financial or emotional – and we use

this word deliberately – elements of Kelsey S. parenthood. These are requirements. As

we read Kelsey S. and Michael H., the prospective father must satisfy all the major

aspects of parenthood, including but not limited to, a full financial and emotional

commitment. The Supreme Court did not say “or otherwise.”

We are aware, however, of one appellate decision that does not fit this

paradigm, H.R., supra, 205 Cal.App.4th 455, decided in 2012. H.R. is an outlier because

in that decision it was pretty obvious the would-be Kelsey S. father fell down on both the

financial and emotional elements of a full commitment to parenthood – and fell down

heavily on the emotional element, to the point of actual physical abuse. Yet the appellate

court still upheld a finding the father qualified under Kelsey S. Not surprisingly, D.N.

relies heavily on H.R. to argue that under the evidence here he is entitled, as a matter of

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law, to Kelsey S. father status based on such positive factors as his having obtained

insurance, read up on parenting, and bought baby supplies. We are not convinced.

Here’s what happened in H.R.: In the early stages of the mother’s

pregnancy, the biological parents had a “rocky” relationship that included verbal and

physical abuse by the unwed father, as well as constant fights. (H.R., supra, 205

Cal.App.4th at p. 458.) On top of that, the trial court also found that the father had not

fully supported the mother financially, at least as “completely” as he might have done.

(Id. at p. 470.) But despite the fights, verbal and physical abuse, and less-than-full

financial support, the trial court found that the unwed father was indeed a Kelsey S.

father, citing other aspects of his behavior: He had participated in prenatal care,

attempted to marry the mother, lived with her a short time, and promptly sought a

determination of his paternity and DNA testing. (Id. at pp. 463-464.) But despite the

finding the father qualified under Kelsey S., the trial court terminated the father’s parental

rights because he was unfit. (Id. at p. 462.) Thus despite having been given Kelsey S.

status, father had to appeal.

The appellate court found father qualified for Kelsey S. fatherhood and

reversed termination of his parenthood. The published part of the opinion does not

actually address the reason for reversal of the termination. The legal discussion portion

of H.R. consisted of parts I through IV, but the panel only published parts I and II,

leaving parts III and IV unpublished. Part I was a general discussion of Kelsey S. law,

leading up to the conclusion that if an unwed father qualifies under Kelsey S., then the

father must be shown to be statutorily unfit to have his parental rights terminated. (H.R.,

supra, 205 Cal.App.4th at p. 466, citing Kelsey S., supra, 1 Cal.4th at pp. 850-851.) Part

II was devoted entirely to refuting the prospective adoptive mother’s argument that the

father did not qualify under Kelsey S. (See H.R., supra, 205 Cal.App.4th at pp. 466-470.)

The part of the opinion reversing the judgment on the basis that the finding of unfitness

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was unsupported necessarily must have been in one of the unpublished parts III or IV of

the opinion.

It is part II of the H.R. opinion that D.N. relies on here. The core of that

part is a rejection of the idea that the father’s failure to fully support the mother either

emotionally or financially disqualified him from Kelsey S. status. Rather, the H.R. court

treated both the financial and emotional elements of Kelsey S. as but a single negative

factor7 to be weighed against the father, and balanced that single negative factor against a

number of positive factors – such as participating in prenatal care and taking legal action

– that militated in the father’s favor. In the process, the opinion euphemized the father’s

verbal and physical abuse as merely a “less than ideal relationship.”8

While we respect the H.R. court’s approach, we take a somewhat dimmer

view of verbal and physical abuse.9 Rather than turning the logical somersaults

7 “L.R. [the prospective adoptive mother] relies on the court’s finding that father did not financially

or emotionally support mother during her pregnancy, and we agree that this is a factor we consider, but the cases

cited by her briefing are distinguishable. In In re Elijah V. (2005) 127 Cal.App.4th 576 (Elijah V.) a biological

father who, at most, sent $300 and diapers for a year was found not to be a Kelsey S. father. In Elijah V., however,

the father did not publically acknowledge his paternity, telling only his mother. When his paternity was questioned,

he lost interest. He never tried to parent the child and never claimed he was willing to take full custody. Instead, he

said he was in ‘no position’ to take the child and placing the child with him would be ‘abuse.’ (Elijah V., supra, 127

Cal.App.4th at p. 583.)” (H.R., supra, 205 Cal.App.4th at p. 470, italics added.)

8 “In the instant case, the record is clear that father had limited financial resources and large

financial commitments – child support obligations, restitution and fines, and legal expenses. He testified he could

not obtain insurance for minor until she was in his house. He failed, however, to show he paid ‘pregnancy and birth

expenses commensurate with his ability to do.’ (Kelsey S., supra, 1 Cal.4th at p. 849.) During some portion of the

relevant time period, he had a job and he did not establish to the trial court’s satisfaction either that he helped to

support mother and minor or that he was completely unable to do so. Nonetheless, L.R. cites no case – and we have

found none – that denied a father, who promptly acknowledged paternity, accompanied mother to prenatal care,

visited his child, was willing and able to immediately take custody of his child, and took extensive legal action to

secure his parental rights and custody of his child, Kelsey S. status solely on the basis of his failure to provide

financial assistance to the mother and his less than ideal relationship with her.” (H.R., supra, 205 Cal.App.4th at p.

470, italics added.)

9 For our purposes, we do not need to also disagree with the H.R. court’s forgiveness of the father’s

less-than-full financial commitment. That was a much closer call, because the father’s finances were already

strained by child support payments for two children of a previous marriage, the need to pay down a large ($18,000)

child support arrearage and a group of fines, restitution orders and legal expenses. (H.R., supra, 205 Cal.App.4th at

pp. 460, 470.) Perhaps, given such impecunious circumstances, the father really was doing all he could on the

financial end. A “full” financial commitment does not mean the last farthing. But there is no way we can agree

with the H.R. court’s excusing verbal and physical abuse of the mother.

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necessary to distinguish H.R. from our case,10 we choose to disagree with it. The opinion

seems to us inconsistent with the text of Kelsey S., which requires a full commitment on

the financial, emotional “and otherwise” aspects of parenthood. We cannot find in

Kelsey S. any balancing test that would excuse financial or emotional deficiencies by

looking to other considerations.11

H.R. is also inconsistent with Supreme Court’s actual holding in Michael

H., supra, 10 Cal.4th 1043. There the unwed father was far better behaved toward the

unwed mother than the father in H.R. Indeed, comparing the facts in Michael H. with

those in H.R., it seems to us that in Michael H. there was a far stronger case for Kelsey S.

fatherhood than in H.R., but the father lost in that case. The H.R. court did not mention

Michael H. at all, much less attempt to distinguish it.12

10 Two published opinions have distinguished H.R. so far. Adoption of A.S., supra, 212

Cal.App.4th 188 distinguished H.R. on the theory that in A.S. there were a variety of factors showing a lack of

commitment to parenthood, namely lack of financial support, lack of contact during pregnancy, “‘a complete

absence’” of communication to the unwed mother of the father’s willingness to support her emotionally or

financially and a “‘laissez faire attitude’” about “truly wanting to raise his child.” (Id. at p. 213.) More recently, in

Adoption of Emilio G. (2015) 235 Cal.App.4th 1133, 1148, the court distinguished H.R. on the ground that the

father’s “attendance at prenatal visits was perfunctory at best, his actions toward [the mother] were harmful, and he

did not diligently pursue his parental rights.” On the next page the Emilio G. court distinguished H.R. on the theory

the father “physically and emotionally abused [the mother], who did obtain a restraining order.” (Id. at p. 1149.)

We would point out, though, that in H.R. the father’s actions were, as in Emilio G., likewise harmful and also

involved physical and emotional abuse.

11 Baby Boy W., supra, 232 Cal.App.4th 438 should not be read as countenancing a balancing-of-

factors approach to Kelsey S. fatherhood. The Baby Boy W. court affirmed a trial court’s determination an unwed

father qualified under Kelsey S. by painstakingly demonstrating that there was substantial evidence the father had

successfully run a gauntlet of seven “factors,” including financial and emotional commitment. (See id. at pp. 454-

461.) Significantly, the appellate court noted that his financial support was consistent with the father’s own “limited

financial resources.” (Id. at p. 457.) Where the father had most fallen down, as we have noted above, was an ill-

advised social media campaign to stop the adoption, but that certainly wasn’t at odds with a commitment to

fatherhood. (See id. at p. 461.) The most that can be wrung from Baby Boy W. is the appellate court’s quotation,

without disapproval, of a statement made by the trial judge that financial contribution during pregnancy is “‘not a

dispositive issue in any event.’” (Id. at p. 456.) We have looked, and we don’t find any “not a dispositive issue”

language in Kelsey S. itself. Moreover, the main point of the “not a dispositive issue” passage in Baby Boy W. was

not to excuse skipping out on paying pregnancy and birth-related expenses (id. at pp. 456-457) or excuse a less-than-

full financial commitment on the part of an unwed father, but to say the funds don’t necessarily have to come from

the father’s own employment, as distinct from other sources like, as in Baby Boy W., the father’s own parents. (Id.

at p. 457.) And to the degree that Baby Boy W. excused the father from paying for pregnancy and birth-related

expenses because the mother did not “require” them (see ibid.), the fact remains that there was evidence the father

did all he could, consistent with his limited means.

12 In the H.R. court’s defense, one senses, in studying the opinion, that the court did not receive the

benefit of first drawer briefing from the parties. For example, it appears the prospective adoptive mother relied only

on two easily distinguishable cases, In re Charlotte D. (2009) 45 Cal.4th 1140 (Charlotte D.) and Elijah V., supra,

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Finally, the H.R. opinion is inconsistent with this court’s decision in Arthur

M., which made a point of saying that name calling by the father was “distinctly

unsupportive and emotionally degrading.” (Arthur M., supra, 149 Cal.App.4th at p. 721.)

None of those decisions used a balancing of factors approach to excuse what Kelsey S.

clearly said was a minimum requirement to show the unconstitutionality of our state’s

paternity statutes as applied to a given unwed father.

In fine, we think the balancing of factors begins only after it is determined

the father fully committed to emotional and financial support. We think the trial court

got it right, and we find nothing in the law to support a reversal.

IV. DISPOSITION

The order is affirmed.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

127 Cal.App.4th 576 (Elijah V.). Charlotte D. was a case where an unwed father was allowed to receive the child

into his home, but expressly waived his parental rights when a guardianship was established. Moreover, his conduct

toward the child when they were living at home was bad, described by our high court as behaving “inappropriately

and even cruelly” to the child. (Id. at p. 1149.) Elijah V. was a case where the unwed father’s omissions were

numerous: He only told one person he was the child’s father, he never publicly acknowledged the child as his own,

he became uninterested when his paternity was questioned, he never was willing to take full custody and he even

said placing the child with him would constitute “‘abuse.’” (Id. at p. 583.) The H.R. court could not base an

opinion on those two cases, and may not have been given others. (See H.R., supra, 205 Cal.App.4th at pp. 469-470)

Obviously, distinguishing Charlotte D. and Elijah V. did not establish, by itself, that the father in

H.R. met the requirements of Kelsey S. It only showed that, at most, the unwed father in H.R. wasn’t as unqualified

as the fathers in Charlotte D. and Elijah V. The tough task would have been to show that the father in H.R. was

more qualified than the father in Michael H., but the H.R. court didn’t attempt that.

It is also possible the H.R. court simply didn’t think the Michael H. decision was applicable at all

because in Michael H. the father’s main area of dereliction centered on his early acquiescence to adoption rather

than actual verbal and physical abuse. That said, we cannot see how initial acquiescence to adoption can be said to

be disqualifying when verbal and physical abuse isn’t.

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