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Adoption of Baby Boy W.

California Court of Appeals, Fourth District, First Division

December 15, 2014

Adoption of BABY BOY W., a Minor. GARRETT J., Plaintiff and Respondent,
v.
A.H. et al., Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County, No. A59385 David B. Oberholtzer, Judge.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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COUNSEL

Law Offices of Ted R. Youmans, Ted R. Youmans; and Leslie A. Barry for Defendants and Appellants A.H. and M.H.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Jacqueline W.

A.C. Howard Law and Anna C. Howard for Plaintiff and Respondent.

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OPINION

AARON, J.

A biological father who does not qualify as a presumed father under Family Code section 7611[1] generally does not have statutory standing to block the adoption of his child unless he proves that it is in the child's best interests that the adoption not proceed. (Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.); Adoption of Michael H. (1995) 10 Cal.4th 1043, 1052 [43 Cal.Rptr.2d 445, 898 P.2d 891] (Michael H.).) Under Kelsey S., however, the father has a constitutional right to establish himself as a quasi-presumed or Kelsey S. father if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise...." (Kelsey S., supra, at p. 849; see In re M.C. (2011) 195 Cal.App.4th 197, 219 [123 Cal.Rptr.3d 856].)

Jacqueline W. and Garrett J. are the unwed biological parents of Baby Boy W. When Jacqueline discovered that she was pregnant, she knew right away that Garrett was Baby Boy W.'s biological father, but she denied Garrett's requests that she sign a voluntary declaration of paternity that would have established Garrett as Baby Boy W.'s statutory presumed father. She then sought to have A.H. and M.H. (the Hs) adopt Baby Boy W. at birth, despite the fact that Garrett had repeatedly stated that he wanted to raise Baby Boy W. himself. Garrett filed a petition to establish his paternity, and Jacqueline and the Hs (collectively, appellants) filed a petition to terminate his parental rights. The trial court found that Garrett established his paternity rights under Kelsey S., denied appellants' petition, and entered judgment in Garrett's favor, thereby halting the Hs' adoption of Baby Boy W. The court set further proceedings to address custody of Baby Boy W.

Appellants contend that (1) the trial court misunderstood and misapplied Kelsey S., and (2) there is not sufficient evidence to support the trial court's Kelsey S. findings. We disagree in both respects and affirm the judgment.

We have not reached this decision lightly. We understand that the consequences of our decision, i.e., halting the Hs' adoption of Baby Boy W., will undoubtedly be heartbreaking for the Hs, who have had custody of Baby Boy W. since the day after his birth. We also realize that removing Baby Boy W. from the Hs and placing him with Garrett and/or Jacqueline will require a period of adjustment for Baby Boy W. However, those emotional considerations, precipitated by Jacqueline's unilateral decision that adoption was in Baby Boy W.'s best interests, do not override Garrett's constitutional right to establish a parental relationship with Baby Boy W.

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FACTUAL AND PROCEDURAL BACKRGOUND[2]

Jacqueline and Garrett met at a party in the summer of 2012 when they were both students at the University of Alabama. Within weeks, they were dating exclusively.[3] On April 23, 2013, Jacqueline told Garrett via text message that she thought she might be pregnant. Jacqueline went to Garrett's house and took two pregnancy tests, both of which yielded positive results. The next day, Garrett went with Jacqueline to the Tuscaloosa Pregnancy Center, where medical staff confirmed Jacqueline's pregnancy. Garrett stood with Jacqueline as she received her results. Jacqueline testified that Garrett was "relatively" supportive during this time; pregnancy center staff noted that Garrett "was very supportive."

The day after they went to the pregnancy center, Jacqueline found a text message on Garrett's phone that he had sent to a friend the prior weekend. The message included a photograph of Garrett hugging another girl and accompanying text suggesting that he and the girl in the photograph had been intimate. Jacqueline was very upset by the message. Garrett downplayed it as a joke.

Over the following days, Garrett and Jacqueline had extensive discussions about the pregnancy, living arrangements, how they would complete school, how they would pay all of the expenses associated with having a child, and whether they should live in San Diego near Jacqueline's family, or in Alabama near Garrett's family, who live in Georgia. Garrett testified that Jacqueline and he did not discuss abortion or adoption as options during those conversations. Garrett also testified that he asked Jacqueline to marry him, but the trial court did not believe him.

Jacqueline and Garrett agreed that they would keep the news of her pregnancy relatively private, telling only their families and very few close friends. Garrett was with Jacqueline when she called her parents to tell them. Jacqueline's father, Norman, was out of town on business at the time, so Jacqueline initially told only her mother, Grace. Garrett also spoke with

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Grace during that call. Jacqueline and Garrett each spoke with Norman a few days later. Jacqueline and Norman both characterized Garrett as supportive during this time.

At the end of April 2013, Jacqueline went with Garrett to Atlanta for four or five days to meet his parents and brothers and to do some sightseeing. Garrett had already told his brothers about the pregnancy, but did not tell his parents until a few days after the trip ended. According to Jacqueline, "[h]e wanted to make sure it was official when [Jacqueline] went to the first doctor's appointment. He didn't want to freak anyone out early."

After the Atlanta trip, Jacqueline returned to San Diego on May 5 and then continued on to Italy in mid-May for a prearranged study-abroad program. Jacqueline and Garrett communicated daily while she was in Italy. When Jacqueline complained of itchy skin, Garrett researched potential remedies.

Jacqueline returned to San Diego in late June 2013. Around the same time, Garrett changed his college major to one that would allow him to take online courses remotely in the fall semester.

On July 1, Garrett flew to San Diego to visit Jacqueline and her family. Jacqueline stayed with her parents in their home and Garrett stayed in their nearby beach house. Garrett and Jacqueline spent every day together, visited with Jacqueline's extended family and friends, and went sightseeing. Garrett acknowledged to Jacqueline's family that he was Baby Boy W.'s father. Garrett gave Jacqueline back rubs and, on one occasion when she suffered stomach cramps while sightseeing, moved her inside a cool hotel and got some ice water for her. According to Garrett, during this visit he offered his financial support, telling Jacqueline and her parents to let him know if there was anything he could do to help.[4] Jacqueline's parents responded that it wasn't necessary; Jacqueline was covered on their health insurance, and Grace worked for Jacqueline's doctor and was able to receive health care at a discounted rate. Garrett testified that he also looked into whether Jacqueline would qualify for state assistance in Alabama.

During the July visit, Garrett spoke with Norman about plans for Baby Boy W. According to Garrett, Norman assumed that Garrett was eventually going to try to take Baby Boy W. back to Alabama, even though Garrett was exploring the possibility of relocating to San Diego. While in San Diego, Garrett contacted a rental office about potential housing and also contacted connections from Alabama about potential work opportunities in San Diego. According to Garrett, Norman expressed his view that Garrett was not mature

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enough to raise a child and that adoption was the best plan. Garrett responded that he would never agree to an adoption.

Also during the July visit, Garrett had a one-on-one lunch with Michael M., a friend of Jacqueline's family who considered himself a "big brother figure" to Jacqueline. Garrett and Michael discussed common life experiences and Michael questioned Garrett regarding his views on the pregnancy and fatherhood. Michael attempted to convey to Garrett what being a father was like so that Garrett would "understand that he was faced with [a] decision that was life-altering...." Michael testified that based on his relationship with Garrett, "as short as that was, I felt he confided and trusted in me. I do know he felt there was obligation with raising the child. There is no doubt about that." Michael was also "impressed" with Garrett's level of concern for Jacqueline; it was apparent "he cared a lot about [Jacqueline]."

Michael asked Garret, "What is your perfect situation? If you could have it any way, what would that be?" Garrett's response "was very clear, 'I would have [Jacqueline] move to Tuscaloosa. We would have the baby there. I would essentially do school online and [Jacqueline] would finish school.' " After Michael "paint[ed] a picture" of what that would be like financially and emotionally, Garrett acknowledged his "perfect" option was unrealistic, and offered as a fallback plan moving to Georgia to be near his family and having his mother help him raise Baby Boy W.

During Garrett's visit, Jacqueline received a text message from a friend in Alabama saying that she had heard through the grapevine that Jacqueline was pregnant. Despite the fact that Jacqueline had told one friend about the pregnancy who, in turn, had told another, Jacqueline attributed the root of the "grapevine" to Garrett's having told his best friend, "who is known for getting drunk and telling everyone absolutely anything that they choose to know." Jacqueline was upset that word of her pregnancy was spreading.

The night before Garrett left San Diego, he and Jacqueline discussed their relationship and the possibility of adoption. According to Jacqueline, she emphasized that it was important to her that Baby Boy W. be raised in a two-parent home, "but [Garrett] made it obvious there would not be a commitment." Jacqueline testified that she told Garrett, "I can't support a relationship any more if the other half isn't helping. He took that as we should be broken up, because I can't support a relationship because I am three, four months pregnant then." Garrett testified that Jacqueline gave him an ultimatum: " 'You are going to have to understand this adoption will happen or I can't support our relationship.' " Garrett left his watch as a gift for Jacqueline and returned to Alabama.

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Jacqueline and Garrett continued to communicate daily via telephone, text messages, and e-mail. Garrett also communicated with Norman, who had asked Garrett to prepare a financial plan showing how he could provide for Baby Boy W. Garrett prepared a plan and sent it to Norman, who considered the plan "basically useless."

Jacqueline and Garrett's communications with each other became more brief and their conversations turned "strain[ed]" and "hostile." During a telephone conversation in mid-July, Garrett became angry with Jacqueline regarding her expressed desire that their baby be adopted. Garrett yelled that she "was making a bad decision" that she "was going to regret... for the rest of [her] life, that [she] could suck it up and [she] could do it...." Norman overheard the argument as he was driving Jacqueline home from her job. Garrett later sent Jacqueline a text message stating, "you cuss me out every time we talk, " to which she responded, "Not 'every time.' But you still some how [sic] think we should be together."

An exchange of text messages on July 28 demonstrates the tension that Jacqueline's decision to relinquish Baby Boy W. for adoption had created between her and Garrett. Jacqueline wrote, "Garrett I feel like I'm just wondering [sic] around waiting for an answer. All I want is someone to hear what I've said because no one has bothered to listen to that. I just want this to all go away—it's like a bad dream and every morning I wake up and it's still there. I'm in pain Garrett[, ] I'm so sad and all I want is for this to be over. It's constant[, ] it never goes away. I know you're a great person and you have a lot of integrity but at this point I need to be supported in my decision. I can't even tell you how hard this is for me. I need support in the right places now. I want this pain to go away[, ] its [sic] constant and never leaves."

Garrett responded, "I understand. I hurt everyday too. Everything is turned upside down and nothing makes sence [sic]. I understand and I really get how you feel. I know why you want to make this go away and I really understand some parts of what you're going through because I am going through some of the same things. I'm worried about you and I'm worried about all the things that are going to change. I'm upset cause now I don't even have the love of my life anymore when all I wanted to do was to avoid making a permanent decision during temporary times of pain. You say things to me that ring in my head when all that I used to think about was good memories of you, and things [I] like[d] doing with you. Even though ...


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