Opinion
F078890
10-01-2019
In re LILLIAN S., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. BRIAN K., Defendant and Appellant.
Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, Maria Elena R. Ratliff and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JVDP18000055)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge. Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, Maria Elena R. Ratliff and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and DeSantos, J.
-ooOoo-
INTRODUCTION
Appellant Brian K. (father) was determined to be the biological father of the minor, Lillian S. Father appeals the juvenile court's determination that he is not a presumed father under either Family Code section 7611, subdivision (d) or Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.), and the denial of reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (a). We affirm.
References to code sections are to the Welfare and Institutions Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
Because the issues raised in this appeal arise out of father's failure to attain presumed father status, we focus on those facts relevant to the issues.
The Stanislaus County Community Services Agency (agency) received a referral shortly after mother gave birth to the minor in May 2018. Mother previously had failed to reunify with a child and had her parental rights terminated in 2017. Father was not the father of the minor's half-sibling.
Mother identified father as the alleged father of the minor, stating father lived in Idaho and did not want to be a part of the minor's life. Mother's current boyfriend acknowledged he was not the minor's biological father but was "excited about her birth and wants to care for her." Her boyfriend, however, had a history of mental illness and substance abuse and was on probation for petty theft and trespassing.
Mother and her boyfriend participated in voluntary family maintenance services, while the minor was voluntarily placed in a foster home. After two weeks, the foster parent indicated she was no longer able to care for the minor. The minor was placed with another voluntary caregiver. This caregiver also requested the minor be removed after two weeks, in part because mother had become "needy and demanding." Mother and her boyfriend did not interact with the minor during visits, instead playing with their cell phones, and attempted to have an inappropriate friend participate in the visits.
On June 11, 2018, mother signed a protective custody waiver and the minor was placed in protective custody in a foster home. A section 300 petition was filed on behalf of the minor on June 13, 2018. It was alleged in the section 300 petition that father's whereabouts were unknown, and a telephone call placed to the last known phone number for father disclosed the number was out of service.
At the June 14, 2018 detention hearing, the agency reported that a search had been conducted to locate father. Letters were sent to addresses and three phone numbers were called. Two numbers were disconnected and the third was a wrong number. The minor was ordered detained.
On June 18, 2018, mother named a second possible biological father for the minor, Charles R.
On June 22, 2018, the agency filed a motion to appoint counsel for father. Father had telephoned the agency on June 21, 2018, stating he may be the minor's father but was unsure. Father wanted DNA testing and appointed counsel. Father lived in Idaho and indicated he could appear by telephone. The social worker's notes indicated father received information about the case from his mother, who had received a letter in the mail, and contacted father through Facebook. Father had not been in contact with his mother for three years prior to that. Father provided the social worker with his address.
Father appeared in the case by telephone on June 26, 2018. DNA testing of father was ordered, and counsel was appointed for him.
The jurisdiction and disposition report recommended that reunification services be denied father, although he had been confirmed by DNA testing as the minor's biological father. Mother reported that she had known father for just over a year but had never been "in a relationship" with father. Mother stated she had not seen father since August 2017 and had limited contact with him by telephone.
Father participated in a social history on August 13, 2018. Father had been married and had a daughter from that marriage, however, the daughter had been adopted by her stepfather. Father named his girlfriend and mother as his support system. Father stated he would do "whatever it takes" to reunify with the minor if she was his biological daughter. Father acknowledged one of his needs was for a stable residence. Father told the social worker, "I would do anything to be a good father for [the minor] if I am her father." The social worker indicated that continuing efforts were being made to locate services in Utah, per father's request.
On August 14, 2018, the social worker contacted father to inform him DNA testing confirmed he was the minor's biological father. Father stated he wanted to reunify and obtain custody of the minor and the social worker encouraged father to contact his attorney and discuss this with the attorney. Father told the social worker he was in the process of moving to Lehi, Utah and the social worker indicated she would try to locate services in that city.
On September 14, 2018, father called the social worker to state he wanted to schedule visits with the minor and was given information on who to contact to make those arrangements. Father told the social worker he would be staying in Twin Falls, Idaho for at least a year and was not moving to Lehi, Utah. The social worker indicated she would begin seeking services in Twin Falls for father.
The jurisdiction and disposition report recommended a denial of reunification services to father because father did not qualify as a presumed father; father had no relationship with the minor; and denying reunification services to father would not be detrimental to the minor.
Father's first visit with the minor was on September 17, 2018. Father had arrived with his girlfriend and insisted she participate in the visit. Staff denied the request, as father was the only person scheduled for visitation. Father argued the point, then stated he would "Facetime" his girlfriend into the visit; father was told video chats would not be permitted. When the minor was brought into the visitation room, father did not get up off the couch. The first hour of the visit went well, but during the second hour the minor was crying. Father was unable to calm the minor and the supervisor intervened after 15 minutes. Staff ended the visit and were able to quickly calm the minor.
Father appeared in person at the jurisdiction and disposition hearing on September 20, 2018. The agency requested that father's status be changed from alleged to biological. The agency also requested that father be allowed a minimum of weekly supervised visitation while present in California for the case. Father requested a contested hearing on jurisdiction and disposition.
After the court hearing on September 20, 2018, father and his girlfriend, whom he introduced as his fiancée, met with the social worker. Father stated he had no mental health history; he had separation anxiety while in the military when his father became ill. Father agreed to send the social worker copies of his military separation papers. Father indicated he would be renting a home in Hanson, Idaho and starting a new job as an on-call tow truck driver.
Father stated he previously was married for less than a year and his ex-wife had full custody of their daughter. Father is required to pay $130 a month in child support. Father met mother through a website in 2016; he was in Illinois when his truck broke down and he was "looking for people to hang out with" while waiting for his truck to be repaired. He and mother "did not have a relationship."
About three to four months after they met, mother called father and told him she was pregnant. According to father, mother acknowledged "she slept with two other guys" and that he, father, was not the father. Father stated he and mother "would go weeks without any contact" but that he tried to "stay involved in the pregnancy." Father did not offer to provide mother with any money, but claimed he did offer to have mother and the minor stay with him before and after the birth; mother declined. According to father, mother called him the day she gave birth and he stated he offered to come to California.
Father told the social worker he wanted to take care of the minor and "get her out of the system." Father felt he needed to obtain stable housing and learn more about the minor before accepting custody.
The following day, the social worker sent father an email reminding him to provide the agency with his military discharge papers and his new address.
On October 3, 2018, father was scheduled to visit with the minor. Father called and cancelled because he had "other things to do" including getting new tires for his truck. At father's scheduled two-hour visit on October 10, 2018, he interacted with the minor for 45 minutes. Father then left, stating he "got a message someone had been messing with his truck."
On November 6, 2018, father told the social worker he no longer was in Idaho. Father found a "better job" in Michigan, which he had not yet started. Father would be working a graveyard shift. He planned to live with his parents, who would provide child care. The social worker spoke with the paternal grandmother, who agreed to provide pictures of the residence and information on those living in the home for a home assessment.
At a hearing on December 13, 2018, father's counsel noted his client was not receiving services. The juvenile court noted that father had moved from state to state and "if he is stabilized" the agency could locate services.
The contested jurisdiction and disposition hearing eventually was held on January 28, 2019. The matter proceeded as to jurisdiction, with a disposition hearing only as to mother because father was not present. The juvenile court assumed jurisdiction over the minor pursuant to section 300, subdivisions (b)(1) and (j). De facto parent status was granted to the caretakers. The juvenile court found the "extent of the progress made by the biological father is minimal at best."
On November 27, 2018, the social worker contacted the paternal grandmother to obtain the information on family members living in the home and pictures of the home. The paternal grandmother refused, stating a social worker in Michigan would have to come to the house.
On December 27, 2018, father sent an email requesting referrals for services in Michigan. He also claimed he had a stable home and a job enabling him to support the minor.
As of January 22, 2019, father had participated in two visits with the minor. He did not communicate with the visitation center as directed to arrange further visits; instead, he called the foster family. Father told the foster mother he wanted visits every Friday from 11:00 a.m. to 1:00 p.m., but he never showed.
On January 22, 2019, the social worker spoke with father by telephone. Father had been in Michigan about six weeks and indicated he was expecting a social worker at the home shortly. Father was asked about three alleged charges for felony child abuse and neglect in Florida; father acknowledged that he was the child in question in the Florida charges. Father was again asked about his military discharge papers. Father was upset throughout the conversation and told the social worker she would have to speak with his lawyer.
The agency submitted the home assessment for father's home with his parents in Michigan. There was a strong odor of marijuana in the common rooms and the bedrooms of the paternal grandmother and father's brother. The paternal grandmother acknowledged that she had pled guilty to five felony counts of child abuse in 1999; assault on an officer; trespass; and other charges in Florida.
Father testified at the disposition hearing via videoconference on February 4, 2019. Father had been employed at his current job about one week; his prior job lasted approximately one month. Father ultimately testified his contact with mother during her pregnancy was sporadic. Father claimed he offered to buy infant supplies and ship them to mother.
Father testified that before the minor was born, he told people the child was his. The juvenile court asked why he had requested DNA testing if that was the case and father replied that mother told him the child was not his. When the juvenile court asked when father decided the minor was his, father replied when mother "was still pregnant with her." The juvenile court asked again why he had requested a DNA test if he considered the minor his child and father replied, it was to prove to "CPS I was her father."
Father was then asked about the felony charges filed in Florida against his mother. Father acknowledged he was the child involved but did not remember very much. Father was asked about his military record and stated he enlisted on June 14, 2012, and was discharged October 3, 2012.
On cross-examination father was asked what he did to see his daughter from his first marriage. Father stated he did not have a "mutual agreement" and had not seen the girl in a "couple years" until he moved back to Michigan.
Father knew the age of the minor, but did not know her feeding schedule, whether she wakes at night, or other particulars about the minor. He was aware the minor had a heart murmur and stated he had a pediatrician in Michigan but could not recall the name of the pediatrician. Father did not send diapers to mother because he did not know the size; did not send food because he did not know if the minor had allergies; and did not send money. Father had not contacted the social worker since October 2018, a period of about four months, to inquire about the minor.
Father was requesting custody of the minor and stated his own mother would be caring for the minor while he worked. Father did not visit the minor in November because he learned his driver's license in Michigan had been suspended for nonpayment of child support. He did not fly to California because he did not have the money. His license was reinstated in January 2019, although he did not pay his child support arrears.
Father did not come from Idaho in August 2018 to see the minor because he did not have a vehicle to use in California. He denied that there had been problems during the visit in September 2018, although he acknowledged he was unable to soothe the minor.
During argument, the agency argued that father could not provide a safe and stable home because the home assessment indicated problems, such as marijuana use and criminal history of his mother, and father was vague on aspects of caring for the minor. The agency argued that father had done little to establish a relationship with the minor and opposed giving father custody or services.
Counsel for the minor opposed services for father, arguing that father had presented no evidence that services would be in the best interests of the minor. Mother's counsel argued father should not be provided services and that he did not qualify as a presumed father under Family Code section 7611, subdivision (d).
Father's counsel argued that he had done all he could to assume a role as the minor's father but had been hindered by the mother. Father's counsel argued that father qualified as a presumed father under Family Code section 7611, subdivision (d) or under Kelsey S., supra, 1 Cal.4th 816.
The juvenile court did not find father to be "completely credible." The juvenile court noted there was no evidence, other than father's statements, that he held the minor out as his child. Father did not provide any documentary evidence or other witnesses to support this claim. Father did not evidence a full commitment to parent the child; he visited twice and failed to make any inquiry after the child for several months.
The juvenile court also found that father did not meet the requirements of a Kelsey S. father. Father did not have a safe and stable home and "has no relationship with the child, he hasn't demonstrated a real commitment, he hasn't even demonstrated a real interest in this child."
The juvenile court concluded that father was not a presumed father. Because father had not demonstrated a "real interest in this child" and because there was no evidence showing that such services would be in the minor's best interests, the juvenile court denied reunification services to father.
Father appealed from the denial of presumed father status and the denial of reunification services.
DISCUSSION
Father contends the juvenile court should have found him to be a presumed father and offered reunification services.
I. Family Code Section 7611 Presumed Fathers
General Principles
In dependency proceedings, "fathers" are divided into three different categories: presumed, alleged, and biological. " 'The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status.' " (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) A presumed father is eligible to have custody of his children, appointed counsel, and reunification services. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449; In re O.S. (2002) 102 Cal.App.4th 1402, 1410; Welf. & Inst. Code, §§ 317, 361.2, subd. (a), 361.5, subd. (a).)
Family Code section 7611, subdivision (d) provides presumed parent status if "[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child." A person requesting presumed parent status under Family Code section 7611, subdivision (d) must have a "fully developed parental relationship" with the child. (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 776, italics omitted.) A "caretaking role and/or romantic involvement with a child's parent" is not enough to qualify. (Id. at p. 777.) A presumed parent must demonstrate " 'a full commitment to [parental] responsibilities—emotional, financial, and otherwise.' " (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802. (Jerry P.)) "The critical distinction is not the living situation but whether a parent-child relationship has been established. ' "[T]he premise behind the category of presumed [parent] is that an individual ... has demonstrated a commitment to the child and the child's welfare." ' " (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384-385.) "One who claims he [or she] is entitled to presumed [parent] status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement." (In re T.R. (2005) 132 Cal.App.4th 1202, 1210.)
On appeal, we independently interpret statutes. However, we review factual findings regarding parentage under Family Code section 7611 for substantial evidence. (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1088; R.M. v. T.A., supra, 233 Cal.App.4th at p. 780.) "We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] We defer to the trial court's credibility resolutions and do not reweigh the evidence. [Citation.] If there is substantial evidence to support the ruling, it will not be disturbed on appeal even if the record can also support a different ruling." (R.M. v. T.A., supra, at p. 780.)
Evidence Does Not Support Family Code Presumed Father Status
The Family Code sets forth the criteria for determining presumed father status, which include: a man marries or attempts to marry the child's mother, he and the mother execute a voluntary declaration of paternity, or he receives the child into his home and openly holds out the child as his natural child. (Fam. Code, §§ 7571, 7573, 7611, subds. (a)-(d).) A biological father is one whose paternity of the child has been established, but who has not established that he qualifies as the child's presumed father. (In re Zacharia D., supra, 6 Cal.4th at p. 449, fn. 15.) An alleged father is a man who may be the father of the child but who has not established biological paternity or presumed father status. (Ibid.)
As noted above, Family Code section 7611, subdivision (d) provides a person is presumed to be the father of a child if he "receives the child into his ... home and openly holds out the child as his ... natural child." "In determining whether a man has 'receiv[ed a] child into his home and openly h[eld] out the child' as his own [citation], courts have looked to such factors as whether the man actively helped the mother in prenatal care; whether he paid pregnancy and birth expenses commensurate with his ability to do so; whether he promptly took legal action to obtain custody of the child; whether he sought to have his name placed on the birth certificate; whether and how long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the number of people to whom he had acknowledged the child; whether he provided for the child after it no longer resided with him; whether, if the child needed public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental." (In re T.R., supra, 132 Cal.App.4th at p. 1211.) Ultimately, the question is whether the man demonstrated a " ' "full commitment to ... paternal responsibilities—emotional, financial, and otherwise." ' " (In re A.A. (2003) 114 Cal.App.4th 771, 779.)
As with the typical presumed father applicant (see, e.g., Kelsey S., supra, 1 Cal.4th at p. 849), father is the biological father of the minor. Here, however, there was scant evidence father had demonstrated a " ' "full commitment to ... paternal responsibilities—emotional, financial, and otherwise." ' " (In re A.A., supra, 114 Cal.App.4th at p. 779.) Instead, it appears father's care and support for the minor, his daughter, was incidental at best.
Father's contact with mother during pregnancy was sporadic. Father did not send clothing or baby supplies to mother for the child; claimed he did not send diapers because he did not know the size; claimed he did not send food because he did not know if the minor had allergies; and did not send money. Father's alleged concerns that mother would misspend money, or that he might send the wrong size diapers or clothing, or was unaware of allergies, could all have easily been overcome by using a common item—a gift card. In short, father provided no financial support whatsoever for the minor.
In terms of receiving the child into his home, father did not do so because the child was placed in protective custody after birth. As for holding the child out as his own, father claims he did so but offered no witnesses to support this claim. Rather, father requested DNA testing after the dependency was filed to determine if the child was his biological child, which contradicts his testimony that he held the child out as his own during mother's pregnancy.
During the dependency, father had very little contact with the minor—two visits, one of which he terminated early. Thereafter, father had not contacted the social worker or the de facto parents to inquire about the minor and did not schedule further visits for a period of about four months.
Father did not have a "fully developed parental relationship" with the minor as required by Family Code section 7611, subdivision (d). (R.M. v. T.A., supra, 233 Cal.App.4th at p. 776, italics omitted.) Two short visits in nine months and no requests for further visits, no financial support, and no inquiries into the minor's well-being for a four-month span of time simply does not equate to a fully developed parental relationship. While father blames mother for his inability to establish presumed father status, it is undisputed that mother did not impair father's ability to establish a relationship with the minor after the dependency was filed; that failure is squarely on father.
As the trier of fact, the juvenile court is the "exclusive judge of the credibility of the evidence and can reject evidence as unworthy of credence," including the testimony of a witness. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Consequently, the juvenile court was entitled to reject father's testimony in whole or in part as lacking credibility. (Ibid.) The juvenile court here found father lacked credibility.
On the totality of the record here, we conclude substantial evidence supports the juvenile court's conclusion that the evidence of father's conduct fell short of demonstrating he qualified as a presumed father under Family Code section 7611, subdivision (d).
II. Kelsey S. Father Status
Father contends that he should be recognized as a Kelsey S. presumed father, and the juvenile court erred in failing to grant him such status. We disagree.
Only a presumed father enjoys the panoply of rights set forth by the dependency statutes and a father who is an alleged or a biological father is entitled to fewer rights. (In re Zacharia D., supra, 6 Cal.4th at pp. 448-449.)
In dependency proceedings, a man's status as a presumed father is critical. (In re O.S., supra, 102 Cal.App.4th at p. 1410.) "[P]resumed fathers possess far greater rights than alleged or biological fathers. [Citation.] Only a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services, and only a presumed father is entitled to custody of his child. [Citation.] In contrast, the juvenile court 'may' order reunification services for a biological father if the court determines that the services will benefit the child." (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596; see also In re A.A., supra, 114 Cal.App.4th at pp. 779-780.)
Here, a paternity test established that father was the biological father. But, " '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.' " (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1052.) " 'Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.' " (Lehr v. Robertson (1983) 463 U.S. 248, 260, italics omitted.)
Sometimes, the mother or another third party prevents the purported father from satisfying the factual predicates needed for "presumed father" status, such as physically receiving the child into the home. (Kelsey S., supra, 1 Cal.4th at p. 825.) "[A]n unwed biological father who comes forward at the first opportunity to assert his parental rights after learning of his child's existence, but has been prevented from becoming a statutorily presumed father under [Family Code] section 7611 by the unilateral conduct of the child's mother or a third party's interference" acquires a status "equivalent to presumed parent status under [Family Code] section 7611." (In re M.C. (2011) 195 Cal.App.4th 197, 213, 220.) Thus, an unwed man may have a constitutional right to presumed father status if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise ...." (Kelsey S., supra, 1 Cal.4th at p. 849.) Such a father is referred to as a "Kelsey S." father.
In determining whether a father is a Kelsey S. father, the court must consider the father's conduct "both before and after the child's birth ...." (Kelsey S., supra, 1 Cal.4th at p. 849.) "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 ....' " (Ibid.) A court should also consider the father's public acknowledgement of paternity, payments to pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. (Ibid.)
Father, who does not qualify for presumed father status under Family Code section 7611, seeks to assert his status as a Kelsey S. father. The agency argues father fails to satisfy the Kelsey S. threshold requirement of promptly coming forward and demonstrating a full commitment to his parental responsibilities. The juvenile court found that father failed to "promptly come forward and [display] a full commitment to the child."
Obviously, determination under Kelsey S. is fact specific. "[O]ur task, ' "begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted" ' to support the trial court's ruling. [Citation.] That ruling is presumed correct, and 'all intendments and presumptions are indulged in favor of its correctness.' [Citation.] In other words, the evidence must be viewed in the light most favorable to the prevailing party." (Adoption of Michael H., supra, 10 Cal.4th at p. 1064 (conc. & dis. opn. of Kennard, J.).)
We find the record supports the juvenile court's finding that father was not a presumed father under Kelsey S. Father requested DNA testing to determine if he was the minor's father. Father stated he would do "whatever it takes" to reunify with the minor if she was his biological daughter. Father maintained only sporadic contact with mother after learning she was pregnant; failed to provide any financial support to mother or for the minor during her pregnancy; visited the minor only two times after birth; failed to inquire after the minor for about four months during the dependency; and failed to establish a safe and stable home in which he could receive the minor. Yet, father claimed "I would do anything to be a good father for [the minor] if I am her father." It was, therefore, up to the juvenile court to determine what to believe. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
Father knew of the minor's existence before she was born, but mother told him "she slept with two other guys." Father did not provide support during mother's pregnancy and requested DNA testing after the dependency was filed. Father was not interested in participating in the dependency, or in the minor's life, unless he was shown to be the biological father. Even then, father visited a mere two times with the minor; ignored the minor for months at a time by failing to visit or inquire after her; and moved from state to state, making it difficult to provide any services.
Father failed to establish a safe and secure home in which he could receive the minor. Instead, he moved into a home with his mother, who had multiple convictions for abusing him as a child. Father considered someone with child abuse convictions to be an adequate caregiver for the minor.
Father's efforts, or rather lack thereof, do not compare favorably to others who have achieved Kelsey S. presumed status. In Jerry P., supra, 95 Cal.App.4th 793, J.R. had a relationship for approximately a year with the child's mother, during which time the baby, Jerry, was conceived. When J.R. learned the mother was pregnant, he assumed the baby was his and told others the mother was pregnant with his child. J.R. eventually broke off his relationship with the mother due to her drug abuse despite his warnings she was harming the baby. Notwithstanding their breakup, J.R. continued to provide support for the mother, by supplying her with vitamin supplements and bus fare for doctor visits, helping with prenatal care and paying for medications. (Id. at p. 797.) Then after Jerry was born, J.R. visited him frequently in the hospital until one day when the baby was gone. Unaware Jerry had been placed in foster care and dependency proceedings initiated after the baby's mother tested positive for cocaine, J.R. tried unsuccessfully for four months to find Jerry. When J.R. eventually learned of Jerry's whereabouts, he requested visits without success. He then went to court and petitioned for presumed father status and secured visitation rights, which he vigorously exercised. J.R. was open " 'to any services that would help,' " even though subsequent DNA tests showed he was not Jerry's biological father. (Id. at pp. 798-800.) The appellate court held that Kelsey S. protection should extend to men such as J.R. who have demonstrated their commitment to parental responsibilities by meeting the conditions set forth in Kelsey S., "none of which depend on biology." (Jerry P., supra, at p. 816.)
In In re D.A. (2012) 204 Cal.App.4th 811, the father and mother had a nonexclusive relationship when she got pregnant. Mother informed father that he might be the father. Father expressed his desire for a genetic test to determine if he was the baby's father, he took mother to two doctor visits, and offered to help with any associated expenses. Soon after, mother cut off contact with father, and he did not again learn her whereabouts until after the child was born. He then again requested a paternity test, but mother stalled, and none was performed before the child was detained due to mother's behavioral issues. After testing determined that another man the court originally found to be the presumed father was not the biological father, father attended the very next hearing and informed the court that if he was the biological father, he wanted to form a relationship with the child. The genetic test results showed he was the biological father, and he requested presumed father status and visitation. He attended every hearing after that and had consistently requested visitation. (Id. at pp. 824-825.) The appellate court held that father had demonstrated Kelsey S. father status when "[d]uring [the] mother's pregnancy he expressed his desire for a genetic test to determine whether he was the baby's father, he took [the] mother to prenatal medical appointments, and he offered to help with any associated expenses. His involvement ended only because mother cut off contact with him ... and he had no other way of reaching her." (In re D.A., supra, at p. 824.)
On appeal, the previously named presumed father faulted father for having asserted, before he was determined to be the child's biological father, that he wished to be a father to the child if the child was his. But as stated by the appellate court, the previously named presumed father "cites no authority for the proposition that a Kelsey S. father must unconditionally assert his parental rights even before knowing whether the minor is his biological child, and we are aware of none. Rather, the law requires that '[o]nce 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 re D.A., supra, 204 Cal.App.4th at p. 825.)
We agree with In re D.A., supra, 204 Cal.App.4th at page 825, that there is "no authority for the proposition that a Kelsey S. father must unconditionally assert his parental rights even before knowing whether the minor is his biological child," and we do not mean to imply or suggest that a father forfeits presumed father status by requesting DNA testing. But a father must still promptly "attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit" (Kelsey S., supra, 1 Cal.4th at p. 849). Father's inconsistent actions over the months both before and after the minor was born, including the fact that he never expressed a desire for paternity testing before the child's birth, and maintained little contact or involvement with the minor after learning of his status as the minor's biological father, runs counter to the full parental commitment envisioned in Kelsey S.
Here, father did not meet the requirements of Kelsey S., as outlined in Jerry P.:
"[A] man is entitled to protection from invidious discrimination in attempting to attain presumed father status if (1) once he 'knows or reasonably should know of the pregnancy, he ... promptly attempt[s] to assume his parental responsibilities as fully as the mother will allow and his circumstances permit,' and (2) 'is indisputably ready, willing, and able to exercise the full measure of his parental responsibilities .... [¶] ... [¶] ... emotional, financial, and otherwise.'" (Jerry P., supra, 95 Cal.App.4th at pp. 816-817, fn. 81 omitted, fn. 82 included, quoting Kelsey S., supra, 1 Cal.4th at pp. 847, 849.)
After learning of his status as the minor's biological father, the juvenile court found that father failed to display a full commitment to the minor. The evidence supports the juvenile court's finding.
III. Reunification Services for Biological Father
With certain exceptions, a dependency court shall order child welfare services to (1) the child's mother and (2) presumed fathers upon removal of the child. (§ 361.5, subd. (a).) In contrast, the court may order services for a biological father, "if the court determines that the services will benefit the child." (Ibid.)
The juvenile court denied reunification services to father, the biological father of the minor, finding there was no "basis on which to find that providing reunification services" to father would be in the minor's best interest. The evidence supports the juvenile court's finding.
The minor had never lived with father and had no bond with him whatsoever. Moreover, father had not demonstrated a clear commitment and "real interest" in the child. The minor was approximately nine months old at disposition. Father had two visits with the minor during her lifetime; left early at one visit; and was unable to soothe the crying minor at another visit. Although father disputes the characterization of the visits in the visitation logs, the juvenile court found the visitation logs more credible than father's testimony.
Father had not shown that he possessed good judgment when arranging care for the minor. As the juvenile court noted, father proposed to have the minor cared for by his mother, who smoked marijuana during the day and had criminal convictions for abusing father when he was a child. Father presented no evidence whatsoever that providing reunification services to him, with a goal of obtaining custody, would in any way benefit the minor.
The only question before us is whether the juvenile court abused its discretion. Here, the juvenile court's conclusion was clearly not an abuse of discretion.
DISPOSITION
The finding that father does not qualify as a presumed or Kelsey S. father and the disposition order denying reunification services to father are affirmed.