The opinion
Filed 4/15/21 Adoption of J.D. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
In re Adoption of J.D., a Minor. C092964
K.D., (Super. Ct. No. SAD0003780)
Petitioner and Respondent,
v.
J.F.,
Defendant and Appellant.
Appellant J.F., biological father of the minor, appeals from the family law court’s
order terminating his parental rights. He contends the order must be reversed because the
court and parties failed to address whether termination of his parental rights was in the
minor’s best interests. We agree and remand with instructions to the family law court to
make additional findings and enter a new order on the petition to terminate parental
rights.
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FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the background to those facts necessary to our resolution
of this appeal.
On May 14, 2019, mother of the then two-year-old minor filed an ex parte petition
to dispense with notice to, and terminate the parental rights of, appellant—the biological
father of the minor. The petition alleged, inter alia, that appellant is not the minor’s
presumed father, nor is there another person who is the minor’s presumed father, and that
the minor should be freed for adoptive placement by mother and a prospective adoptive
second parent. Mother’s supporting declaration stated she was seeking to allow her
mother (the maternal grandmother) to become the minor’s adoptive second parent. To
facilitate this second parent adoption, she was requesting the court terminate appellant’s
parental rights pursuant to Family Code sections 7822 and 7664.1 On the same date, the
maternal grandmother filed an adoption request, seeking to be declared an additional
parent, with mother retaining her parental rights, but also requesting the court grant the
petition to terminate appellant’s parental rights.
A court investigator filed a report on June 17, 2019, reporting appellant had no
relationship with mother at the time of conception, had never met the minor, and was not
certain the minor was his biological child. The investigator reported appellant claimed he
had been kept from seeing the minor or providing financial support, was opposed to
termination of parental rights, and was hoping for court ordered visitation. The
investigator reported, however, that appellant had not made any attempt to petition for
visitation and had not shown any initiative, beyond token efforts, to meet or financially
support the minor. Mother had reported that when she told appellant of her pregnancy,
he asked her to get an abortion. The investigator also reported that the minor’s mother
1 Undesignated statutory references are to the Family Code.
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lived with and was receiving financial and child rearing support from the maternal
grandmother. The minor had been raised by mother and the maternal grandmother and
the investigator reported that it appeared to be in the minor’s best interests to terminate
appellant’s parental rights.
Appellant repeatedly requested genetic testing to determine if he was the minor’s
biological father and, over mother’s relevancy and delay objections, the court ultimately
granted his request. The trial on mother’s petition to terminate appellant’s parental rights
took place on November 2, 2020. Prior to opening statements, there was discussion
about the relevance of the minor’s biology and the manner of conception. In that context,
there were some remarks made about the issue of best interests of the minor, as follows:
“THE COURT: [¶] . . . [¶] As I understand it, the issue is not whether in fact
[appellant] is the biological father of the child. In fact, the petitioner, from what I’m
reading, concedes that he is the biological father of the child. The issue is whether he
comes under the statutory and case definition of a presumed father. So that’s basically
what we’re talking about here. [¶] And then whether or not evidence needs to be
presented about the best interests of the child.”
Prior to trial, the court tentatively ruled that evidence related to the manner of
conception and evidence related to the DNA testing or results were not relevant and
would be tentatively excluded.
Thereafter, in connection with discussion surrounding the admissibility of
evidence relating to the manner of the minor’s conception, mother’s counsel remarked
that appellant did not meet any of the statutory definitions of a presumed father so “all we
have left is Kelsey S.”2 Mother’s counsel argued it was appellant’s burden to prove
2 Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
An individual is what is known as a Kelsey S. father, or a presumed father
pursuant to Kelsey S., when, although he has not satisfied the section 7611, subdivision
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whether, as “a mere alleged father, it is in this child’s best interest to retain his parental
rights” and that “[t]he best interests of the child is what needs to be focused on.” The
court agreed that appellant “certainly has the burden if we get to best interests,” and had
the burden of proof to establish presumed parenthood under Kelsey S., but concluded
mother had the burden to prove appellant was not a statutorily presumed father.
Appellant testified at trial as to some initial matters and the court made a finding
that appellant did not meet the statutory criteria to establish himself as a presumed father
under section 7611, subdivisions (a), (b), (c), or (d). Appellant then testified regarding
the actions he did, and did not, take with respect to mother’s pregnancy and the rearing of
the minor. Appellant also made an offer of proof concerning the testimony of his mother.
Appellant’s counsel then indicated that she had no further witnesses as to the issue of the
burden to prove appellant was a presumed father under Kelsey S., but “[i]f I survive this
burden, clearly I would have to call [appellant] and potentially his mother regarding best
interests. But at this time I have no further witnesses as to Kelsey S.” Mother’s counsel
then argued appellant had not met his burden and asked the court to enter a judgment
and/or direct a verdict that appellant is not the minor’s presumed father and terminate his
parental rights.
After hearing further argument from the parties, the court found appellant had
failed to establish himself as a presumed father under Kelsey S. The court found a
(d) conditions to become a presumed father, he promptly came forward and made a full
commitment to his parental responsibilities, emotional, financial and otherwise, but a
third party has thwarted his attempt to achieve presumed parent status under section
7611, subdivision (d). The factors to consider in determining whether a man qualifies as
a presumed father pursuant to Kelsey S. are the man’s “conduct before and after the
child’s birth, including whether he publicly acknowledged paternity, paid pregnancy and
birth expenses commensurate with his ability to do so, and promptly took legal action to
obtain custody of the child. [Citation.] He 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. [Citation.] He must also demonstrate a willingness to
assume full custody. [Citation.]” (In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)
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reasonable man who wanted to establish a relationship with his child would have done
“far more” than appellant had done, that appellant had not taken any of the many avenues
that were available to him to establish a connection with the minor, that appellant had not
really believed he was the minor’s father, and had done nothing to pursue his remedies
until that fact was established to his satisfaction. The court then stated, “So I am going to
grant the petition to terminate any parental rights of [sic] the minor child and enter
judgment accordingly.”
The court did not follow this proceeding with a hearing or ruling on the maternal
grandmother’s adoption request. Appellant filed a timely notice of appeal from the
judgment after trial on the petition to terminate parental rights.
DISCUSSION
Appellant concedes that evidence supports the court’s finding that he does not
qualify as a presumed father under Kelsey S. He contends, however, that the court
erroneously terminated his parental rights as an undisputed biological father without
making the necessary finding that termination of his parental rights is in the minor’s best
interests.3 We agree with this contention.
Finding appellant is neither a statutory presumed father nor a presumed father
pursuant to Kelsey S. renders him unable to object to an adoption. (Kelsey S., supra,
1 Cal.4th at p. 825 [“[a] natural father’s consent to an adoption of his child by third
parties is not required unless the father makes the required showing that retention of his
parental rights is in the child’s best interest”]; see § 7664, subd. (b); see also Adoption of
A.S. (2012) 212 Cal.App.4th 188, 215.) Finding appellant is not a presumed father is not,
however, sufficient to support the termination of his parental rights without the court first
3 He also argues that the evidence supports a finding that it is in the minor’s best
interests for him to retain his parental rights. We do not address this contention because,
as we discuss, the court did not make a finding on best interests for this court to review.
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finding termination is in the minor’s best interests (either pursuant to mother’s pending
petition, or in connection with granting the maternal grandmother’s adoption request).
We cannot imply that the court made the finding that termination of appellant’s
parental rights is in the minor’s best interests. Instead, it appears from the colloquy in the
record that both the court and appellant’s counsel were under the mistaken impression
that there was no need for appellant to prove termination was not in the minor’s best
interests, and no need for the court to make a best interests finding, unless appellant first
met his burden to establish that he should be found a presumed father pursuant to
Kelsey S. Accordingly, we must remand for the court to make a best interests finding in
that regard.
Additionally, it is unclear whether the court granted mother’s petition to terminate
appellant’s parental rights pursuant to only section 7664, or whether the petition was also
granted pursuant to section 7822 (abandonment). The court simply stated mother’s
petition, which requested termination pursuant to both sections, was granted. On remand,
the court should indicate whether it is making findings and orders as to one or both
sections.
Finally, we note that appellant also appears to contend that the maternal
grandmother cannot qualify as a second parent for purposes of adopting the minor in this
case. We do not reach the merits of that contention since the court has not granted the
request for adoption. Nor is reliance on the ability of the maternal grandmother to adopt
the minor as a second parent necessary for the court to find that termination of appellant’s
parental rights is in the minor’s best interests, either under section 7822 or section 7664.
Thus, the issue is not ripe for review.
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DISPOSITION
The order granting mother’s petition and terminating appellant’s parental rights is
reversed and the matter is remanded for the family law court to make new findings and
enter a new order consistent with this opinion. On remand, the family law court shall
exercise its discretion regarding what additional evidence, if any, may be presented by
the parties.
/s/
BLEASE, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
KRAUSE, J.
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