Filed 6/5/15 K.W . v. T.I. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

K.W., Plaintiff and Appellant ,

v. T.I ., Defendant and Respondent

. D066301

(Super. Ct. No. DN173720)

APPEAL from an order of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed. K.W., in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent. Plaintiff K.W. ( plaintiff

) appeals from an order of the family court that dismissed his petition to establish custody rights for D

. T ., t he minor child of defendant T.I

. ( defendant), based on plaintiff ' s claim of parentage. The family court granted the motion by defendan t to strike the petition, with prejudice, based on the showings made at the hearing.2

Representing himself on appeal, plaintiff contends the petition was erroneously dismissed based upon his previous efforts to establish his parentage and the alleged lack of a fair hearing. At plaintiff ' s request, this court augmented the record to provide the history of the prior proceedings. Defendant has not filed a brief. We have reviewed the record and conclude plaintiff ' s challenges to the dismissal order are not w ell taken. The family court had an adequate basis in the evidence to exercise its discretion in the manner it did. We affirm.
I
CURRENT PETITION AND PREVIOUS ORDERS We set forth only those facts that are relevant to the issues on appeal. The record sho ws that defendant gave birth to the minor child in 2006 and did not identify a father
on the birth certificate. Plaintiff ' s decla ration states that at that time he was 16 years old and he signed a paper givin g up his parental rights. The parties were nev er married. Defendant got married for a brief time to the child ' s stepfather , who considered adopting the child, but did not follow through. According to a minute order of February 14, 2013, plaintiff ' s parental rights had been terminated in December 201 2 in connection with the adoption request. On February 14, 2013, plaintiff brought a motion to set aside the termination of his parental rights, and the court granted the motion and dismissed the pending adoption petition for the child. The c ourt advised plaintiff he would need to seek custody and visitation orders in the f amily c ourt. Plaintiff filed such a petition, also requesting appointment of minor ' s3

counsel, and obtained a hearing date in June 2013. The matter was continued to August 27, 2013.
A fter the August 27, 2013 hearing, the court issued findings and order s after hearing to allow further proceedings on whether plaintiff was a presumed father under Family Code 1 section 7611, subdivision ( d) ( the Uniform Parentage Act). The court ordered DN A testing of the child and set a trial for January 16, 2014, on presumed father status under Adoption of Kelsey S. (1992) 1 Cal.4th 816 ( Kelsey S. ) . Depending on the outcome of that trial , the court would schedule further proceedings on remaining issues o f custody, visitation and support. The request for appointment of minor ' s counsel was denied without prejudice. Plaintiff obtained an appointment for DNA testing but defendant did not cooperate until shortly before the hearing. On January 15, 2014, plai ntiff filed an answer on the Kelsey S. presumed father issues, claiming he did not realize he had signed away his parental rights when the child was born, and he believes his rights were reinstated in 2012. He attached DNA testing results for himself and the child, showing a 99 percent plus probability that he is the biological father. At the January 16, 2014 trial, defendant was represented by counsel and plaintiff represented himself. The court (Judge Brown) heard testimony from plaintiff , defendant ,

a nd other witnesses, and received an agency report from f amily court s ervices. The court ruled that d efendant was credible and that p laintiff had not demonstrated a willingness to

1 A ll further statutory references are to the Family Code.4

assume custody of the child and did not make a public acknowledgment of pate rnity , nor assist with expenses . The court made findings that p laintiff " did not seek prompt legal action to seek custody of the child and has demonstrated conduct showing he would be an unfit parent. " The motion to strike was granted and the petition wa s accordingly dismissed with prejudice. Counsel for d efendant was directed to prepare the f indings and

o rder after h earing. This was not done until July 16, 2014.
On March 12, 2014 , in another case number, p laintiff sought to challenge Judge
Brown from conducting further proceedings, but the request was denied and the court noted the current case had been dismissed with prejudice. This appeal was filed to challenge the order dismissing this case.
I I
APPLICABLE ST

ANDARDS A. Basic Rules of Review On app eal, the judgment of the trial court is presumed to be correct. ( Denham v. Superior Court (1970) 2 Cal.3d 557, 564 ( Denham ).) Accordingly, if the judgment is correct on any theory, the appellate court will affirm it regardless of the trial court ' s

reason ing. ( Estate of Beard (1999) 71 Cal.App.4th 753, 776

- 777; D ' Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18

- 19.) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. ( Denham , supra , at p. 564.) An plaintiff has the burden to provide an adequate record and affirmatively show reversible error. ( Ibid .)5

It is well established that " [i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [proc edural and court] rules. " ( Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) For any plaintiff ,

" [a]ppellate briefs must provide argument and legal authority for the positions taken.

' When an plaintiff fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat th e point as waived. ' " ( Nelson v. Avondale
Homeowners Assn . ( 2009) 172 Cal.App.4th 857, 862 ; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830

. )

B

. Arguments on Appeal; Statutory Criteria As best we can determine from the opening brief, p laintiff claims that he had fully established his parental rights as of February 2013, but d efendant did not cooperate. However, the record does not support a finding that p laintiff was ever found to be a presumed father before the subject hearing took place in January 2014. At that time, he was given an opportunity to attempt to prove he was entitled to parental rights, but he was unable to do so, af

ter testimony from witnesses. Under s ection 7611, subdivision (d), there is a rebuttable presumption that a man is the natural father of a child if he " receives the child into his [] home and openly holds out the child as his [] natural child. " For the r ebuttable presumption to arise, p laintiff had the burden of establishing by a preponderance of the evidence that both elements existed: reception into his home, and his open and public acknowledgement of paternity. ( In re Spencer W. (1996) 48 Cal.App. 4th 1647, 1652

- 16 53 [foundational facts must be established by preponderance of evidence, to obtain benefit of presumption].) As the6

trier of fact, the family court had to determine whether the foundational facts were established by a preponderance of eviden ce. ( Id. at p. 1653.) Under Kelsey S

. , supra, 1 Cal.4th 816, whether presumed father status can be established under section 7611, subdivision (d), depends upon whether the applicant promptly attempted to assume full parental responsibilities, and showed " ' a willingness himself to assume full custody of the child

— not merely to block adoption by others. ' " ( Adoption of Michael H. (1995) 10 C al .4th 1043, 1054, 1051 [ " to become a presumed father, a man who has neither married nor attempted to marry his chi ld ' s biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home , " italics omitted ]; 10 Witkin, Summary of C al. Law (10th ed. 2005) Parent and Child, § 39, p. 98.) Plaintiff provided his decl arations and answers showing the trial court that he had signed away his parental rights when he was 16, and he told the court he did n o t pay attention to what the form said and he was a " dumb young teenager who didn ' t know any better. " Be that as it may, we are not permitted to relitigate this case and p laintiff has not brought forward any arguments or facts to show the order failed to meet the above legal standards. Essentially, his opening brief claims that different evidence should have been considere d or provided. For example, he argues: " I was never allowed to see my son not even when he was born she kicked me out the hospital and didn ' t put my name on the birth certificate and cheated on me when we were together. That is why I requested a
DNA tes t s she is a gamest.

. . . [ Sic. ] [¶] My subpoena witnesses he never considered Social worker: Natasha Hood ' s testimony about [ d efendant ] falsified evidence in the7

adoption case. [ Sic. ] I had to augment my case so I submitted new proof to support my cl aim in what I ' m saying. [¶] This couldn ' t be fair. My rights are being refused with no grounds. " According to the minute order and the formal order, the court took testimony from
p laintiff and d efendant , as well as other witnesses, and it received and co nsidered the exhibits offered. Given the relevant statutory criteria and the record provided, we cannot find there was any error or any abuse of discretion in the f amily c ourt ' s dismissal of the petition. We are not bound to develop p laintiff ' s argument for h im, and " t he absence of cogent legal argument or citation to authority allows this court to treat the contention s as waived. " ( In re Marriage of Falcone & Fyke , supra , 164 Cal.App.4th at p. 830 .) E ven if we liberally construe the opening brief and i ts contentions, we cannot rehear the evidence and must instead presume that it supports the family court ' s determinations. ( Denham , supra , 2 Cal.3d at p. 564.) We affirm the dismissal of the petition.
DISPOSITION The order striking and dismissing the pe tition is affirmed. Each party shall bear its

own costs. HUFFMAN, Acting P. J.
WE CONCUR:
O ' ROURKE, J.

IRION, J.