Filed 10/19/20 In re K.G. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re K.G., A Person Coming 

Under Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

LESTER S.,

Defendant and Appellant;

Christa G., 

Respondent.

 B302626

 (Los Angeles County Super.

 Ct. No. 19CCJP06160B)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Rashida Adams, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of 

Appeal, for Defendant and Appellant Lester S. 

Annie Greenleaf, under appointment by the Court of 

Appeal, for Plaintiff and Respondent, Christa G.

________________________
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Lester S. (father) appeals from the juvenile court’s 

assertion of jurisdiction over his infant daughter. He argues the 

court erred in denying him nonstatutory presumed father status. 

We disagree and affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

In September 2019, daughter was born with a positive 

toxicology screening for methamphetamines and amphetamines. 

The Department of Children and Family Services (Department) 

filed a petition alleging mother had a history of substance abuse 

and had tested positive for drugs at daughter’s birth. The 

petition further alleged that father had failed to protect daughter 

from mother’s substance abuse. 

The juvenile court detained daughter from both parents, 

and ordered monitored visitation for mother. Father did not 

appear at the detention hearing because he was in jail. He

appeared at a subsequent arraignment hearing and requested 

presumed father status. He stated he had held himself out 

openly as the child’s father. The court deferred paternity 

findings. 

At the jurisdiction hearing in November 2019, father was 

still in custody and was not present. Mother, who was not 

married to father, testified she believed father was daughter’s 

biological father. Mother and father had lived together for a year 

and a half, including the first seven months of her pregnancy. 

The parents stopped living together when father was arrested in 

August 2019. Father had never met daughter. The court also 

received evidence that father was not on daughter’s birth

1 The Department of Children and Family Services informed 

us by letter dated April 20, 2020 that it takes no position in this 

appeal.
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certificate, and had not bought necessities or financially 

supported the child. Mother, who had been unemployed for 

several years, had received “financial assistance with rent” from 

her mother. 

The court found no basis for presumed status. The court 

sustained allegations of neglect, and ordered reunification 

services for mother. Even though father was not accorded 

presumed parent status, the court exercised its discretion to 

provide him with reunification services as well. Daughter was 

removed from mother’s custody and placed in foster care. Father 

timely appealed. 

DISCUSSION

1. The Law

In dependency proceedings, fathers fall into four categories: 

alleged, biological, presumed or de facto. (In re Jerry P. (2002) 

95 Cal.App.4th 793, 801.) At issue here are the biological and 

presumed categories. A biological father is a man whose 

biological paternity has been established but who has not yet 

achieved presumed father status. (See In re A.A. (2003) 

114 Cal.App.4th 771, 779.) A presumed father is “one who 

‘promptly comes forward and demonstrates a full commitment to 

his paternal responsibilities—emotional, financial, and 

otherwise.’ ” (Jerry P., at pp. 801–802.) Only presumed fathers 

are entitled to reunification services and custody of the child, 

however, the court may exercise its discretion to order 

reunification services to biological fathers as the court did here. 

(Ibid; In re Sarah C. (1992) 8 Cal.App.4th 964, 976.)

Presumed paternity status is generally governed by Family 

Code section 7611 which provides the circumstances under which 

a father may demonstrate entitlement to presumed father status. 
4

(Fam. Code, § 7611, subd. (d); A.A., supra, 114 Cal.App.4th at 

p. 780.) In addition to the statutory categories, courts have 

recognized equitable presumed status under Adoption of Kelsey S. 

(1992) 1 Cal.4th 816 (Kelsey S.). (Jerry P., supra, 95 Cal.App.4th 

at pp. 797, 813.)

Under the Kelsey S. doctrine, when an unwed, biological

father promptly comes forward after learning of a pregnancy and 

demonstrates a full commitment to his parental responsibilities—

emotional, financial, and otherwise—he is entitled to presumed 

parent status even if he has been thwarted by a third party.2 

(Kelsey S., supra, 1 Cal.4th at p. 849; see In re Elijah V. (2005) 

127 Cal.App.4th 576, 582; see also Jerry P., supra, 

95 Cal.App.4th at p. 816 [extending the Kelsey S. principle to 

nonbiological fathers or “men . . . who have demonstrated their 

commitment to parental responsibility by meeting the conditions 

set forth in [Kelsey S.], none of which depends on biology.”].) We 

review factual findings regarding presumed father status for 

substantial evidence. (In re M.Z. (2016) 5 Cal.App.5th 53, 64.)

2 There is a split of authority whether a Kelsey father has 

the same rights as a presumed father. (See In re Vincent M. 

(2008) 161 Cal.App.4th 943, 947, 955–960 [noting that the Kelsey 

Court did not “hold under any theory that such a father had 

presumed father status” but only a right to notice and 

consideration for placement and services]; cf. In re M.C. (2011) 

195 Cal.App.4th 197, 220 superseded on other grounds by statute

[“ ’a father asserting valid Kelsey S. rights may effectively qualify 

for presumed father status as the result of his constitutional 

right to parent, which overrides any contrary statutory 

direction.’ ”].)
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2. Father Forfeited His Claim for Kelsey S. Status

Father does not dispute that he does not qualify as a 

statutorily presumed father under Family Code section 7611, but 

instead argues for the first time on appeal that he is a 

nonstatutory presumed father within the meaning of Kelsey S. 

He contends that he did “all that he could reasonably do under 

the circumstances” to demonstrate his commitment to daughter 

but was thwarted by law enforcement’s taking him into custody. 

(Kelsey S., supra, 1 Cal.4th at p. 850.)

The Department argues father forfeited his claim for 

Kelsey S. status because he never raised the issue below. We 

agree. “A party seeking status as a father under Kelsey S. must 

be clear he wants to be so declared.” (See Elijah V., supra,

127 Cal.App.4th at p. 582 [the father did not “sufficiently raise[] 

the issue of whether he was a Kelsey S. father by arguing he was 

entitled to presumed father status”]; cf. In re Baby Boy V. (2006) 

140 Cal.App.4th 1108, 1116 [a parent need not make a formal 

request for Kelsey S. status where such a request would have 

been futile].) Here, father argues that his general request for 

presumed father status sufficed to raise this issue. By this 

argument, he acknowledges he did not expressly request to be 

declared a father under Kelsey S. We have also reviewed the 

record on appeal, and there is nothing showing he made a Kelsey

S. argument. As father did not request Kelsey S. status in the 

juvenile court, he has forfeited the issue here. In any event, even 

without forfeiture father has not shown he attempted to fully 

assert his parental rights and responsibilities but was only 

prevented by the unilateral conduct of law enforcement. 

“In determining whether a biological father has 

demonstrated such commitment, the father’s conduct both before 
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and after the child’s birth must be considered. [Citation.] . . . A 

court should also consider the father’s public acknowledgment of 

paternity, [and] his payment of pregnancy and birth expenses 

commensurate with his circumstances . . . . [Citation.]” (In re 

Julia U. (1998) 64 Cal.App.4th 532, 541.) If a father seeking

Kelsey S. status does not fully commit to his parental 

responsibilities, the actions of any third party are irrelevant to 

the determination. (Elijah V., supra, 127 Cal.App.4th at p. 584.)

Here, even when father was living with mother, the record

does not show that he paid for child raising expenses. Although 

father contends he did support mother financially prior to his 

arrest, his citations to the record do not demonstrate as much. 

Instead, the record shows that father and mother lived together, 

that father was employed, that maternal grandmother provided 

mother with money for rent, and that mother signed a 

declaration stating father was not “helping to support financially, 

paying rent, [or] buying necessities . . . .” Aside from father 

telling his friends and family that he was going to be a father, 

there was no other evidence before the trial court that he 

attempted to assert responsibility for the child. Father has not 

shown that but for law enforcement’s interference, he would have 

fully committed to his parental responsibilities if his actions had 

not resulted in his arrest. The record does not contain evidence 

that, even prior to being taken into custody, he took all of the 

necessary actions to qualify for Kelsey S. status.

Because father had not demonstrated trial court error, he 

also has not shown a due process violation based on that alleged 

error. We note that father may renew his request for presumed 

status at a later date. (In re Zacharia D. (1993) 6 Cal.4th 435, 

454–455.)
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DISPOSITION

The order is affirmed.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.