Filed 10/15/20 In re K.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication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

In re K.B., a Minor.

M.D.,

Petitioner and Appellant,

v.

J.B.,

Petitioner and Respondent.

 D077068

 (Super. Ct. No. A62042)

APPEAL from an order of the Superior Court of San Diego County, 

Edlene C. McKenzie, Judge. Affirmed.

Judith Klein for Plaintiff and Appellant M.D.

Julie E. Braden, under appointment by the Court of Appeal, for the 

Minor and Respondent.

No appearance by Respondent J.B.

M.D., the biological father (Father) of K.B. appeals from an order 

denying his motion to vacate the adoption of K.B. by the adoptive mother J.B. 
2

In its statement of decision, the trial court found that Father was unable to 

establish his parental rights before they were terminated because he relied 

on a misrepresentation by the birth mother T.C. that she had a miscarriage. 

The court found that although J.B. knew Father’s identity during the 

pregnancy and had a moral obligation to disclose it to the court, she did not 

have “a legal responsibility” to do so. The court denied Father’s motion on 

the ground it would not be in K.B.’s best interests to set aside the adoption. 

Father contends the court abused its discretion in finding it was in K.B.’s 

best interests to remain with an adoptive parent who committed fraud and 

that the court erred in denying him relief after finding that extrinsic fraud 

prevented him from establishing a parental relationship with K.B. We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

K.B.’s birth and adoption 

T.C. gave birth to K.B. on June 8, 2016, which resulted in a referral to 

the San Diego County Health and Human Services Agency (the Agency) due 

to T.C.’s history of child abuse and neglect. The next day T.C. told an Agency

social worker that she was not sure of the father’s identity and that she had 

met him only one time. She said that when she conceived K.B., she was 

having “some good times” with her friend Veronica and Veronica’s friend in a 

hotel in Imperial Beach, but she did not remember Veronica’s last name or 

her friend’s name. She thought K.B.’s father had black hair and black skin 

and spoke only English, and that his first name started with the letter M. 

T.C. voluntarily placed K.B. with J.B., who had adopted her two older 

children, because she wanted to keep the three children together. She 

wanted to relinquish her rights to K.B., and after she completed a 

competency evaluation, it was determined that she could proceed with the 
3

adoption process. She was scheduled to meet with an adoption’s social 

worker on September 7, 2016, to sign relinquishment papers, but was found 

deceased by her caregiver on September 4, 2016.

The Agency filed a dependency petition on September 7, 2016, alleging 

that K.B. was left with no provision for support. The court declared K.B. a 

dependent of the court on September 29 and set a section hearing under 

Welfare and Institutions Code section 366.26 for January 25, 2017, to 

determine K.B.’s permanent plan. The court ordered the Agency to make its 

“best efforts to identify father’s identity by contacting family, non-relative 

extended family members and/or friends.” (Capitalization omitted.) 

On November 21, 2017, the Agency filed a declaration of due diligence, 

in which it noted the dependency petition had been amended to update the 

father’s identity from unknown to “first name initial ‘M’ AKA M Unknown.” 

Given the minimal information about the father’s identity that T.C. was able 

to provide, the Agency was “unable to determine the identity of [K.B.’s]

father, ‘M’ AKA M Unknown.” Without any identifying information such as a 

full name, date of birth, or social security number, the Agency was unable to 

conduct a search for the father. The Agency further noted that the identities 

of K.B.’s paternal grandparents were unknown.

Based on the Agency’s declaration, the court found there had been due 

diligence in trying to locate the unknown father and ordered that “notice to 

‘M’ AKA M Unknown, shall be dispensed with as all attempts made to 

ascertain the identity of the alleged father have been unsuccessful and no 

further attempts including publication would lead to actual notice to the 

alleged father.” 

On January 25, 2017, the juvenile court selected adoption as K.B.’s

permanent plan, terminated parental rights, and declared K.B. “free from the 
4

custody and control of [her] father M, plus all AKA’s . . . .” On July 20, 2017, 

J.B. filed a form “Adoption Request” seeking to adopt K.B. The request noted 

that the court had ended parental rights of alleged fathers and that the 

mother T.C. had died. The Agency filed a joinder in J.B.’s “petition” to adopt 

K.B., requesting that the petition be granted. The Agency also filed a form 

confirming its receipt of documents verifying that the court had terminated 

parental rights and that the mother was deceased. The Agency reiterated 

those facts in a report to the court in which it approved of J.B. as an adoptive 

parent and recommended the court grant the petition for adoption. 

On September 1, 2017, J.B. signed and filed a form adoption 

agreement. The court entered an adoption order finalizing J.B.’s adoption of 

K.B. and terminated dependency jurisdiction 

Father’s relationship with T.C. and knowledge of K.B.

At the evidentiary hearing on his motion to vacate the adoption, Father 

testified that he met T.C. around May of 2015 at a 7-Eleven store.1 They 

exchanged cell phone numbers and began a dating relationship that ended 

around October or November 2015. They had sex one time during the 

relationship. The relationship ended because it was difficult for Father to 

keep contact with T.C., who was transient and did not have a stable home.

Around November 2015 T.C. called Father and told him that she was 

pregnant and that she was sure it was his child. Father was excited and told 

T.C. that he loved kids and had no problem taking care of his child, but he 

needed to have a paternity test as soon as possible. When he said that, T.C. 

1 Father later testified that he started seeing T.C. in January or 

February of 2015 and that his earlier testimony that they met in May of 2015 

was incorrect.
5

“got mad” and someone in the background started talking to her.2 He heard 

T.C. refer to the other person by J.B.’s first name. He became upset when he 

heard the other person say things like, “I told you he, wasn’t nothing. I told 

you he didn’t want this baby.” Father said to T.C., “If this is my baby, this 

has nothing to do with that person. . . .What me and you have, did, has to do 

with me and you, not this other person. Can you please call me when it’s just 

me and you?”

After that telephone conversation, Father tried to find T.C. and 

repeatedly called her cell phone number, but was unable to contact her. Two 

or three weeks after she told Father she was pregnant, Father received a 

telephone call from T.C. while riding in a car with his girlfriend T.B. T.C. 

told Father that she had been in a car accident and had a miscarriage. 

Father again heard another person speaking in the background and heard 

T.C. address the other person by J.B.’s first name and say to the other 

person, “[J.B.], can you please stop talking? Let me talk to him.” Father 

testified that he said to T.C., “You had a miscarriage, this is something we 

need to talk about one-on-one, but every time you call me you got somebody 

else in the background. This has nothing to do with nobody else but me and 

you. Can you please call me when you got nobody else in the background." 

T.C. never called Father again and when he called her back with the last 

number he had for her, the number was disconnected.

The last time Father saw T.C. was in July of 2016, after K.B.’s birth. 

T.C. called Father and said she wanted to meet with him and talk because 

she had not seen him in a while. They met downtown but T.C. said nothing 

2 The reporter's transcript is printed in all capital letters. We have 

modified all quotations from that transcript to reflect conventional 

capitalization.
6

during the meeting. She appeared to be confused and just looked at the 

ground with a blank stare. Father asked her if she was okay, if anything was 

wrong, if she had something to tell him, if she needed help, but T.C. did not 

respond. Finally, Father said he had to go and asked T.C. for a hug. T.C. 

hugged Father and he told her that he had to go to work and to let him know 

if she needed anything. Father did not ask T.C. about the baby because she 

had told him that she had a miscarriage.

Father testified that in August or September of 2017, he was working 

at a food concession at Petco Park before a baseball game when J.B. 

approached him and asked if he would take a photograph of her and her 

friend who was with her. Father took a few photos of J.B. and her friend 

with J.B.’s phone, and when he handed the phone back to J.B., she said, 

“Hey, is your name [M.D.]?” Father said, “Yes, it is.” J.B. said, “I’m [T.C.’s]

friend. I have her kids.” She told Father she had heard about him and 

wanted to let him know that T.C. had a seizure and passed away earlier that 

year. 

J.B. asked Father if he was T.C.’s boyfriend. Father said, “No, I wasn’t 

her boyfriend, but we were cool. We were cool. We definitely dated. We were 

cool.” J.B. responded, “Okay. I want to let you know I’m the person who has 

her kids.” J.B. then showed Father a picture of K.B.’s two older half-siblings. 

Father remembered that T.C. had shown him the same picture when she told 

him about her children. Father asked J.B. if she needed help with anything. 

She replied, “No we’re good. I just wanted to let you know that [T.C.] passed 

away.” J.B. did not mention that T.C. gave birth to a child in 2016 or that 

there might be a child that he fathered.

J.B. visited Father at his workplace a second time in April 2018. 

Father was mopping up a spilled drink when J.B. tapped him on the shoulder 
7

and said, “[T.C.] only told you it was a miscarriage because she didn’t want 

you to take the baby.” J.B. showed Father a photograph of K.B. and said, “I 

think this is your baby, I need you to take a DNA test.” Father was shocked. 

He and J.B. exchanged phone numbers and Father agreed to take a paternity 

test. 

After J.B. left, Father was too upset to continue working so he went 

home and started exchanging text messages with J.B. Father testified that 

in his text messages he “started letting [J.B.] know ‘this is crazy. Why didn’t 

you tell me this a year ago? You came here a year ago, this is not cool. You 

could have told me this a year ago.. . . . This [is] not fair. This don’t make no 

sense.” 

J.B. testified that in December 2015, T.C. expressed to J.B. that she 

wanted J.B. to adopt K.B. J.B. knew that T.C. had told the “potential father” 

that she had a miscarriage. T.C. was not sure who the father was and 

thought there were three possible fathers. She said the name of one started 

with “M” and another was her roommate. Regarding Father’s testimony that 

J.B. was present during T.C.’s phone calls to him, J.B. denied that she had 

ever been on a three-way call with T.C., or was in any way present during 

those calls.

J.B. went to see Father the first time in 2017 because T.C. had said “a 

guy that started with M could have been [K.B.’s] dad” and that he worked at

Qualcomm Stadium at a particular kind of food concession. J.B. went to 

Qualcomm but there was no such concession there, so when she attended a 

game at Petco Park, she looked there. When she asked Father what his 

name was, he said that people call him “[M.D.]” Her purpose in meeting 

Father was to find out whether he knew T.C. and “could be the potential 

father.” She testified that she asked him if he had “ever hooked up with 
8

[T.C.]” He answered, “No. She was only my homegirl[,]” so she “left it at 

that.” She did not ask him anymore questions because she did not think that 

“he was going to tell [her] anything different than ‘No.’ ” She later testified 

that she asked Father whether he had “messed with” T.C., and he answered,

“No, we were only friends.” On cross-examination she testified that she did 

not tell the court that Father (the person named “M”) could be K.B.’s father 

and did not tell Father in 2017 about K.B. because Father told her he had not 

slept with T.C. 

J.B. testified that when she met Father the second time in 2018, she 

asked him, “Are you sure you never hooked up with [T.C.] because there is a 

child involved?” Father responded, “I may have slept with her once or twice.” 

J.B. and Father exchanged phone numbers, but J.B. did not remember

discussing “anything about DNA.” In the text exchanges that ensued, they 

discussed DNA testing, but it did not happen because Father became rude 

and disrespectful to J.B. in his text messages. She stopped texting him and 

blocked his number because “he was cussing at [her] through text.” 

Father’s motion to vacate the adoption

On April 20, 2018, Father filed correspondence with the court in which 

he recounted the facts about his relationship with T.C., the phone calls from 

T.C. in which she told him about her pregnancy and miscarriage, J.B.’s two 

visits to his workplace, and their agreement during the second visit that he 

would get a paternity test. He stated, “But when I try to contact [J.B.] she 

won't give me any information on the child and she won't set up a time and 

place to test, she tells me not to worry about [it] because she adopted the girl, 

now I can't get in contact with her. I would like for this case to be reopened 

based on the fact that I had no idea about the child and both part[ies] knew 

that I was a potential father. I would like to take a paternity test ASAP[.]” 
9

On April 27, 2018, Father filed a declaration stating that he believed there 

was “an adoption in process” for a child that might be his child and that he 

was contesting the adoption. 

On May 10, 2018, counsel for the superior court sent Father a letter 

informing him that the adoption of K.B. was finalized on September 1, 2017, 

and that the court could not consider his request unless he filed a formal 

motion and gave notice of the motion to everyone involved in the case. Court 

counsel recommended that Father talk to an attorney who is familiar with 

adoption law.

On May 16, 2018, Father filed a petition to view records in K.B.’s 

adoption case. About a month later he filed a second petition to view records 

with assistance of counsel. In his declaration in support of the petition, 

Father set forth the relevant facts and stated that based on the dates of his 

relationship with T.C. and K.B.’s date of birth, there was a very good 

possibility he was K.B.’s biological father. He suspected fraud may have been 

committed on the court in that his “status as a potential biological father may 

have never been disclosed during the proceedings.” He contended that “[J.B.]

was aware of [his] status as [a] potential biological father of [K.B.] prior to 

the finalization of the adoption.” He requested access to the adoption records 

to confirm that he was not mentioned as a potential biological father and, if 

he was mentioned, to “determine if there was an error in the service of the 

notice of the proceedings upon me or there was some other reason that [he]

was not made aware of the proceedings.” The record indicates that the court 

granted Father’s petition to view records and that he received the records of 

the dependency proceedings leading to the adoption on August 27, 2018. 

On November 13, 2018, Father filed his motion to vacate the adoption 

of K.B. on the ground his rights as an alleged father were terminated due to 
10

extrinsic fraud. In his supporting declaration, Father averred that J.B.’s

knowledge of his status as a potential father and ability to find him were 

“clear proof that [T.C.] also knew [he] was the potential father of [K.B.]” He 

asserted that both J.B. and T.C. knew of his status as a potential father 

before the court terminated the parental rights of alleged fathers in the 

dependency case and the adoption was finalized in the present case, yet 

neither informed the court of Father’s identity. Father contended that J.B. 

continued T.C.’s fraud in the dependency case into the adoption case. Father 

“did not learn the extent and true nature of this fraud until August 27, 2018 

when [he] returned from a family vacation and [his] attorney shared the 

documents released . . . by the Court in [the dependency case]. 

The court set Father’s motion for a special hearing on December 27, 

2018, and at the December hearing continued the matter to January 11, 

2019. On January 11, the court appointed counsel to represent K.B. and

continued the matter to February 22, 2019. On February 22, the court 

ordered a paternity test for Father and set a special hearing for April 26, 

2019. On April 26, the court appointed counsel for J.B. and acknowledged 

that the results of Father’s paternity test indicated Father was K.B’s 

biological father. The court set the matter for trial on July 26, 2019. On July 

26, the matter had to be continued again, over Father’s objection, because the 

judge on the case was unavailable due to unanticipated circumstances. The 

court set the trial for October 9 and 10, 2019.

At the beginning of the hearing on October 9, 2018, the court 

considered oral motions by J.B.’s counsel and minor’s counsel to “dismiss” 

(i.e., deny) Father’s motion to vacate the adoption on the ground the motion 

was untimely under Family Code section 9102, subdivision (b), which 

provides that “an action or proceeding of any kind to vacate, set aside, or 
11

nullify an order of adoption, based on fraud, shall be commenced within three 

years after entry of the order, or within 90 days of discovery of the fraud, 

whichever is earlier.” Counsel for K.B. and J.B. argued that Father filed his 

motion to vacate the adoption more than 90 days after he was aware of the 

alleged fraud.3

The court denied the motions, ruling that Father’s motion to vacate the 

adoption filed on November 13, 2018, was timely under the statute because 

he filed it within 90 days of August 27, 2018, the date he obtained the court 

records that revealed the facts that supported his fraud claim–in particular, 

the fact that the court was not given his identity in the prior proceedings. 

The court stated, “There’s a difference between finding out that you’re the 

father or possibly the father and the actual facts that might substantiate the 

claim of fraud. They’re two different things.”

The court then heard testimony from a number of witnesses in addition 

to Father and J.B., including T.C.’s friend L.M., who let T.C. stay with her for 

a couple of weeks during the period that T.C. was dating Father. L.M. had 

met Father because he had been at her house a couple times. T.C. told L.M. 

that she was pregnant and that the child might be Father’s. Father 

contacted L.M. when he was looking for T.C. after she became pregnant. The 

court also heard testimony from Father’s current girlfriend, who had been 

dating him since October 2017, and from J.B.’s friend who was with J.B. the 

first time she met Father at his workplace in 2017.

3 Although the record does not reflect that J.B. and K.B. filed written 

motions, in their written opposition to Father’s motion to vacate the adoption, 

both J.B. and K.B. argued that the court lacked jurisdiction to hear Father’s 

motion to vacate the adoption because it was untimely under Family Code 

section 9102, subdivision (b).
12

In addition to the testimony noted above, J.B. testified that she had a 

job and a close relationship with K.B., who was in the same preschool that 

her (K.B.’s) older half-siblings attended. J.B. took K.B. to the zoo, Sea World, 

Disneyland, the park, and medical appointments. K.B. was diagnosed with 

autism and was receiving speech therapy twice a week, and was involved 12 

hours a week in applied behavior analysis, a therapy that teaches autistic 

children to function in a large group and in the community. J.B. testified 

that K.B. got along well with her older sisters, who were ages five and eight.

After J.B. testified, the court asked the parties to submit their closing 

arguments in writing and continued the matter to October 25, 2019, for its 

statement of decision. Father, K.B., and J.B. filed post-hearing briefs. On 

October 21, the court took the October 25 hearing off calendar because it

required more time to render its decision. The court informed the parties 

that it would mail its statement of decision to them. 

On November 14, 2019, the court filed its statement of decision denying 

Father’s motion to vacate the adoption. The court found that T.C. committed 

extrinsic fraud that prevented Father from establishing parental rights 

before the court terminated them. The court stated: “While [T.C.’s] medical 

and psychosocial history is of great concern to the court, she very specifically 

told [Father] that he was the father and she lied when she told him [she] 

suffered a miscarriage. When [T.C.] asked to see [Father] in the summer of 

2016, she had an opportunity to tell him that he was the father of her child 

born the month before and chose not to. [Father] relied upon [T.C.’s]

misrepresentation that she had a miscarriage as evidenced by his not taking 

any further action regarding paternity until it became known to him that 

[K.B.] had in fact been born and he could be the father. Consequently, 
13

[Father] was not able to establish his parental rights prior to his rights being 

terminated.” 

The court essentially found that J.B. was complicit in T.C.’s fraud and 

expressly found that she had a moral obligation to disclose her knowledge of 

Father in the dependency proceedings but not a legal obligation to do so. The 

court believed “[J.B.] knew the identity of [Father] during [T.C.’s] pregnancy.” 

The court stated: “[L.M.], [T.C.’s] old high school friend with who[m T.C.]

stayed for a period of time while she dated [Father], was clear that [T.C.]

knew [Father] was the father of her unborn baby. It is reasonable to infer 

now, given what transpired later, that [T.C.] had been discussing with [J.B.] 

having her care for her baby when she was born. The court believes that 

[J.B.] was present during the telephone call concerning the miscarriage based

upon [Father’s] credible statements that he heard [T.C.] interact with a 

person referred to [as J.B.’s first name] during that fateful call.” However, 

the court concluded that “[n]otwithstanding [J.B.'s] knowledge of [Father’s]

identity during [T.C's] pregnancy and the moral obligation she had to disclose 

his identity, there is no authority presented showing [J.B.] had a legal 

responsibility to conduct a search or report to the court concerning any 

information she possessed regarding [K.B.'s] father's biology.” 

The court addressed K.B.’s best interests as follows: “It is tragic that 

the parties were not able to work out an arrangement that would allow [K.B.]

the ability to know her biological father and his family and still preserve the 

integrity of the stable placement she enjoys. [K.B.] has a clear interest in 

knowing who she is and how she came to be in her family constellation.

“[K.B.] is three years old and has been living in [J.B.'s] home since 

birth. [J.B.] is the only mother [K.B.] has ever known. Because [K.B.] is on 

the autism spectrum, she requires extra time and attention including speech 
14

therapy and Applied Behavior Analysis. [K.B.] is involved in lots of activities 

and medical appointments. She has resided with two older half-siblings since 

birth and from all accounts is close to them.

“If the court were to set aside the adoption, [K.B.] would have no legal 

parent. The court would be required to contact [the Agency] to do an 

investigation for purposes of filing a petition for protection in the juvenile 

court under Welfare and Institutions Code section 300. If the agency were to 

file a petition under W&I 300 (g) (no parent or guardian), the agency would 

be required to assess [J.B.] under the relatively new ‘RFA’ criteria.[4] There 

are no guarantees that [K.B.] would be permitted to remain in her current 

home. In the meantime, since [Father’s] rights have already been terminated 

in the prior dependency action, a petition would be required to attempt to set 

that finding and order aside. There is no guarantee that this attempt would 

be successful. If the court did set aside the order terminating his parental 

rights, the court would be required to assess whether it would be in [K.B.'s]

best interest to afford reunification (or in this case unification) since [Father]

is only a biological father. Again, there are no guarantees that [Father]

would be successful. In the meantime, [K.B.] would be a dependent of the 

juvenile court while all of these issues are being resolved legally. It is 

unknown how long this process could take. Meanwhile, [K.B.'s] future would 

be up for grabs. It would clearly not be in [K.B.'s] best interests to be in legal 

4 The court’s “RFA” reference presumably is to the Resource Family 

Approval Program. “Implemented statewide on January 1, 2017, the 

Resource Family Approval Program (RFA) provides a unified approval 

process to replace the multiple processes to approve foster care homes, 

relatives and nonrelative extended family members, and adoptive homes for 

the placement of dependent children.” (In re Charlotte C. (2019) 33 

Cal.App.5th 404, 408.)
15

limbo and to have her current placement destabilized for an undetermined 

period.”

The court’s statement of decision concluded with the following ruling: 

“The court finds [Father’s] action was timely. The court finds that [T.C.] lied 

to [Father] about miscarrying his child which ultimately prevented him from 

bringing an action to establish paternity. The court finds that while [J.B.]

knew of the identity of [Father] at the time of [T.C.'s] pregnancy, she was 

under no legal obligation to disclose his identity. The court does not find that 

it would be in [K.B.'s] best interest to set aside the adoption. [Father’s]

request to do so is DENIED.” 

DISCUSSION

Father contends the court abused its discretion in finding that it was in 

K.B.’s best interests to remain with an adoptive parent who committed fraud. 

He further contends the court erred in denying him relief after finding that 

extrinsic fraud prevented him from establishing a parental relationship with 

K.B. 

“Adoption proceedings involve a wide discretion on the part of the trial 

judge, and [the court’s] decision upon the facts presented . . . will not be set 

aside unless a clear abuse of discretion is shown.” (Adoption of Smith (1969) 

270 Cal.App.2d 605, 609.) On appeal from a trial court's adoption decision, 

we will not disturb that decision unless the trial court has exceeded the limits 

of legal discretion by making an arbitrary, capricious, or patently absurd 

determination. (Ibid.; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) In 

applying the abuse of discretion standard of review, we consider all the 

evidence, draw all reasonable inferences, and resolve all evidentiary conflicts 

most favorably to the trial court's decision. (In re Robert L. (1993) 21 

Cal.App.4th 1057, 1067, superseded by statute on another ground as noted in 
16

Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) We will 

reverse a trial court's discretionary decision only if, after considering the 

evidence most favorably to support that decision, we conclude no judge could 

have reasonably made that decision. (Ibid.)

Father does not challenge the court’s best interest analysis per se, 

other than to argue that in weighing K.B.s best interests, the court should 

have considered whether J.B.’s participation in the extrinsic fraud that 

prevented him from participating in the dependency and adoption 

proceedings rendered her unfit to parent such that it would not be in K.B.’s 

best interests to remain in her care. Contrary to what Father suggests, the 

court’s statement of decision reflects that it did consider J.B.’s role in the 

extrinsic fraud. As noted, the court stated its belief that J.B. knew Father’s 

identity during T.C.’s pregnancy and had a “moral obligation . . . to disclose 

his identity” even though she had no “legal responsibility” to do so. Although 

the court did not expressly refer back to J.B.’s involvement in the extrinsic 

fraud in its best interests analysis, the court presumably took it into account 

in considering whether it would be in K.B.’s best interests to vacate the 

adoption, and obviously concluded that the benefits of continuing K.B.’s 

stable home life with J.B. and her sisters outweighed any harm she might 

theoretically suffer as a result of J.B.’s breach of her moral obligation to

disclose Father’s identity to the court during the dependency and adoption 

proceedings. 

Aside from the court’s alleged failure to consider J.B.’s fraud in its best 

interests analysis, Father’s essential claim is that because he established, 

and the court found, that he was prevented by extrinsic fraud from being 

heard in the dependency and adoption proceedings and there was no claim or 

finding that he was unfit to parent, the court should have vacated the 
17

adoption order notwithstanding the benefit to K.B. in maintaining the 

adoption – i.e., the court erred in ruling that K.B.’s best interests trumped his 

due process right as a biological parent to receive notice and an opportunity 

to be heard in the adoption proceedings.

Thus, Father presents the following issue: Where the trial court has 

found that a child’s biological father was prevented by extrinsic fraud from 

asserting his parental rights and contesting the child’s adoption and there is 

no finding that the father is unfit to parent, does the court nevertheless have 

discretion to deny the father’s timely petition to vacate the adoption on the 

ground that it would not be in the child’s best interests to vacate the 

adoption? We conclude the court is required to consider the child’s best 

interests in that circumstance notwithstanding its finding of extrinsic fraud 

and, depending on the facts, may properly exercise its discretion to deny a 

father’s request to vacate an adoption based on the child’s best interests.

Family Code section 9102 subdivision (c), provides: “In any action to 

set aside an order of adoption pursuant to this section or Section 9100, the 

court shall first determine whether the facts presented are legally sufficient 

to set aside the order of adoption. If the facts are not legally sufficient, the 

petition shall be denied. If the facts are legally sufficient, the court's final 

ruling on the matter shall take into consideration the best interest of the child, 

in conjunction with all other factors required by law.” (Italics added.)

Thus, Family Code section 9102, subdivision (c), requires the court to 

consider whether vacating an adoption order would be in the child’s best 

interests even if the facts supporting a petition to set aside the adoption are 

legally sufficient. The statute does not direct the court to consider whether a 

petitioning parent is fit to parent or whether granting the petition would be 

detrimental to the child; it only specifically directs the court to consider the 
18

child’s best interest. By requiring the court to consider the child’s best 

interest “in conjunction with all other factors required by law” when 

presented with legally sufficient facts to grant a petition to vacate an 

adoption, section 9102, subdivision (c), necessarily gives the court discretion 

in an appropriate case to deny a petition on the ground that vacating the 

adoption would not be in the child’s best interests, notwithstanding the

legally sufficient facts to grant the petition.5 Here, the facts supporting the 

court’s finding of extrinsic fraud were legally sufficient to support an order 

granting Father’s motion to vacate the adoption, but the court lacked 

authority to vacate the adoption based on those facts without considering 

whether it would be in K.B.’s best interests to do so. To conclude that the 

court was automatically required to set aside the adoption based on its 

finding of extrinsic fraud would contravene the requirement under section 

5 Consideration of the child’s best interests under Family Code section 

9102, subdivision (c), is consistent with Family Code section 7664. 

Subdivision (b) of section 7664 provides that “[i]f the biological father or a 

man claiming to be the biological father claims parental rights, the court

shall determine biological parentage. The court shall then determine if it is 

in the best interest of the child that the biological father retain parental 

rights, or that an adoption of the child be allowed to proceed.” Subdivision 

(c), provides: “If the court finds that it is in the best interest of the child that 

the biological father should be allowed to retain parental rights, the court 

shall order that the biological father's consent is necessary for an adoption. If 

the court finds that the man claiming parental rights is not the biological 

father, or that if the man is the biological father it is in the child's best 

interest that an adoption be allowed to proceed, the court shall order that the 

consent of that man is not required for an adoption. This finding terminates 

all parental rights and responsibilities with respect to the child.” Thus, 

whether a biological father challenges an adoption before it is final or 

presents legally sufficient facts to vacate the adoption after it is final, the 

court’s principal consideration in resolving the matter is the child’s best 

interest. 
19

9102, subdivision (c), that “its final ruling shall take into consideration the 

best interest of the child . . . .” 

In addition to Family Code section 9102, subdivision (c), California case 

law supports the principle that in considering whether to vacate an adoption, 

the overriding concern is the child’s best interests. In Adoption of Jason R.

(1979) 88 Cal.App.3d 11, 17, the Court of Appeal stated: “ ‘The welfare of the 

child is the paramount consideration in all courts of record in proceedings 

involving the custody of children; and this principle will be found reiterated 

in most of the cases involving proceedings for annulment or vacation of 

adoption decrees. In other words, if an annulment clearly appears to be in 

the best interest of the welfare of the child, this alone would constitute proper 

grounds for annulment at the instance of either the natural or the foster 

parents.’ ” The corollary to that principle is that if denying a petition to 

vacate an adoption clearly appears to be in the child’s best interests, that 

alone may be proper grounds for denying the petition and preserving the 

adoption. As another court stated: “ ‘It is the cardinal rule of adoption 

proceedings that the court consider what is for the best interests of the child. 

[Citation.]’ [Citation.] We can never ignore the child's best interests, ‘no 

matter what preliminary action its parent or parents may have taken.’ 

[Citation.] Indeed, the child's welfare is ‘the controlling force in directing its 

custody . . . .’ ” (Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1257.)

In San Diego County Dept. of Pub. Welfare v. Superior Court (1972) 7 

Cal.3d 1, the California Supreme Court noted that “[i]n an 

adoption . . . proceeding, however, the question of clean hands is largely 

subordinated to the court's primary concern which is to determine what is in 

the best interest of the child.” (Id. at p. 9.) The Supreme Court further noted 

that “the consent of the natural parents, except in those situations excepted 
20

by statute, is a jurisdictional prerequisite to an adoption with the caveat that 

such consent requirements are no longer to be construed strictly in favor of the 

rights of the natural parent. As we have pointed out, such requirements are 

to be liberally construed in order to effect the object of the adoption statutes 

in promoting the ‘ “welfare of children, bereft of the benefits of the home and 

care, of their real parents . . . .” ’ ” (Ibid. at. p. 16, italics added.) Thus, 

California case law further supports the court’s discretion in this case to deny 

Father’s motion to vacate the adoption based on its consideration of K.B.’s 

best interests.

Father relies on Adoption of Kelsey S. (1992), 1 Cal.4th 816 (Kelsey S.) 

and In re Baby Boy V. (2006) 140 Cal.App.4th 1108 (Baby Boy V.), which 

support the proposition that “[w]hen an unwed father learns of a pregnancy 

and ‘promptly comes forward and demonstrates a full commitment to his 

parental responsibilities—emotional, financial, and otherwise—his federal 

constitutional right to due process prohibits the termination of his parental 

relationship absent a showing of his unfitness as a parent. Absent such a 

showing, the child's well-being is presumptively best served by continuation 

of the father's parental relationship. Similarly, when the father has come 

forward to grasp his parental responsibilities, his parental rights are entitled 

to equal protection as those of the mother.’ ” (Baby Boy V., supra, at p. 1117, 

quoting Kelsey S., supra, at p. 849.) The Baby Boy V. court concluded that 

“[b]ecause there was nothing in the record to suggest that [the father] is unfit 

as a parent, he was entitled to presumed father status and, absent the 

presentation of evidence of unfitness on remand, he is entitled to 

reunification services and visitation–provided that [he] establishes on 

remand that, as represented, he in fact came forward promptly on learning of 
21

the baby's existence and otherwise satisfied the requirements of Adoption of 

Kelsey S. . . . .” (Baby Boy V., supra, at p. 1118.)6

The key distinction between Baby Boy V., Kelsey S. and Baby Girl M.

and the present case is that Father here did not learn of the adoption and 

come forward to claim his parental rights until well after the adoption was 

final. In Kelsey S. the father asserted his desire to parent the child 

immediately upon learning of the pregnancy, and in Baby Boy V. and Baby 

Girl M., the fathers came forward as soon as they learned of the child’s 

existence, which was before the court terminated parental rights and ordered 

adoption as the child’s permanent plan. The court here was faced with a 

challenge to an adoption by a father who first asserted his desire to parent 

the adopted child a substantial time after the adoption was final. 

Because Father petitioned to set aside an adoption that was final, his 

petition was governed by Family Code section 9102, subdivision (c), which, as 

we discussed, expressly requires the court to consider the child’s best interest 

in ruling on a petition to vacate an adoption. In light of the requirement 

under section 9102 that the court consider the child’s best interests in ruling 

on a petition to vacate an adoption and the case law supporting the principle 

that the overriding consideration in adoption proceedings is the child’s best 

interests, the court did not abuse its discretion in denying Father’s petition 

based on K.B.’s best interests even though it found that he was excluded from 

the dependency proceedings as a result of extrinsic fraud.

6 Father also cites In re Baby Girl M. (1984) 37 Cal.3d 65, 75 (Baby Girl 

M.), in which the California Supreme Court held the trial court erred by 

applying the best interests of the child standard without first determining 

whether granting custody to the natural father would be detrimental; 

however, as the Supreme Court noted in Kelsey S., that holding was 

abrogated by a statutory amendment. (Kelsey S., supra, 1 Cal.4th at pp. 839-

840.)
22

The court’s exercise of discretion to deny Father’s motion to vacate the 

adoption is also supported by the likelihood that granting the motion would 

ultimately result in the adoption’s being reinstated anyway based on K.B.’s 

best interests. If the court were to set aside the adoption and vacate the 

order terminating parental rights, under Family Code section 9101 it would 

then decide who would have custody of K.B. pending further proceedings. 

Family Code section 9101, subdivision (a), provides: “If an order of adoption 

is set aside as provided in Section 9100, the court making the order shall 

direct the district attorney, the county counsel, or the county welfare 

department to take appropriate action under the Welfare and Institutions 

Code. The court may also make any order relative to the care, custody, or 

confinement of the child pending the proceeding the court sees fit.” (Italics 

added.) The court would likely order that K.B. remain in J.B.’s custody 

pending future proceedings because J.B.’s home is a stable placement and it

would be an abuse of discretion to remove K.B. from the only home she has 

ever known absent a finding that it would be detrimental for her to remain 

there.7

The status of J.B.’s petition to adopt K.B. would revert to pending with 

Father’s participation in the proceedings as a biological father claiming 

parental rights. Under Family Code section 7664, the court would be 

required to determine whether it is in K.B.’s best interest for Father to retain 

parental rights or whether it is in her best interests that the adoption be 

7 In his opening brief, Father submits that the court should have set 

aside the adoption and “fashioned court orders to allow [K.B.] to remain with 

[J.B.] while [Father’s] fitness to parent was evaluated.”
23

allowed to proceed. (Fam. Code § 7664, subds. (b) & (c).)8 Father would have 

the burden of showing it would be in K.B.’s best interests for him to retain 

parental rights and the adoption not to proceed. (Adoption of Emilio G.

(2015) 235 Cal.App.4th 1133, 1151.) For reasons stated in its order denying 

Father’s motion to vacate the adoption, the court would likely find it in K.B.’s 

best interests to allow the adoption to proceed, and the case would be in its 

current posture – i.e., K.B. would be adopted by J.B. and Father’s parental 

rights would be terminated.

Thus, reversing the order denying the motion to vacate the adoption 

would likely accomplish little other than the court’s and parties’ expenditure 

of substantial time and resources. We are not saying that to the extent the 

court erred in denying Father’s motion to vacate the adoption the error was 

harmless; we simply observe that the court’s exercise of discretion to deny the 

motion to vacate the adoption is further supported by the fact that the likely 

end result of vacating the adoption would be to allow it to proceed to finality 

a second time based on consideration of K.B.’s best interests.

We obviously do not condone the type of extrinsic fraud that occurred in 

this case and we sympathize with Father’s loss of the right to challenge the 

adoption before it became final and before a substantial period of time passed 

after it became final. However, we cannot conclude the court abused its 

discretion in deciding it was not in K.B.’s best interests to set aside the 

adoption. As the court noted in its statement of decision, K.B. has been living 

8 Similarly, if the case were to proceed as a dependency case, Father, as a 

biological but not presumed father, would have to show that it is in K.B.’s 

best interests for him to be provided reunification services. (Welf. & Inst. 

Code, § 361.5, subd. (a) [“[T]he juvenile court may order [reunification] 

services for the child and the biological father, if the court determines that 

the services will benefit the child.”]; In re Elijah V. (2005) 127 Cal.App.4th 

576, 589.)
24

in J.B.’s home since her birth in 2016 and J.B. is the only parent she has ever 

known. K.B. lives with her two older half-siblings with whom she has a close 

relationship and is involved in many activities. She is on the autism 

spectrum and has ongoing therapies and a lot of medical appointments. 

Given the circumstances of this case, the court did not exceed the limits of 

legal discretion in denying Father’s motion to vacate the adoption on the 

ground granting the motion would not be in K.B.’s best interests.

DISPOSITION

The order denying Father’s motion to vacate the adoption is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.