Filed 6/26/14 Adoption of K.M. CA4/3 

 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

Adoption of K.M., a Minor. 

MICHAEL S. et al., 

 Plaintiffs and Respondents, 

 v. 

SAMUEL P., 

 Defendant and Appellant. 

 G049149 

 (Super. Ct. No. AD79081) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, Ronald 

P. Kreber, Judge. Affirmed. 

 Brent Riggs, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 John A. Giffen; Broedlow Lewis, Jeffrey Lewis and Kelly Broedlow 

Dunagan for Plaintiffs and Respondents. 

 No appearance for the Minor. 

* * * 
2

I. INTRODUCTION 

 The issue in this appeal is whether the evidence compelled the trial court to 

conclude that Samuel, who alleges he is the biological father of K.M., qualifies as a 

presumed father under standards enunciated in Adoption of Kelsey S. (1992) 1 Cal.4th 

816, and hence has the right to block the adoption of K.M. by Michael and Tasha. 

Because the evidence does not compel any such conclusion, we affirm the judgment 

finding Samuel’s consent is not necessary for the adoption.1 In overview, this case is a 

combination of Adoption of Michael H. (1995) 10 Cal.4th 1043 [alleged father’s delay in 

asserting parental right between July and November compelled finding that he did not

qualify under Kelsey S.] and Adoption of O.M. (2008) 169 Cal.App.4th 672 [the “father’s 

ability to demonstrate his commitment was impeded to a far greater extent by the 

predictable consequences of his own criminal activity”].) At the most crucial point in the 

timeline – when Samuel was first informed of Kathleen’s pregnancy – he was 

incarcerated and unable to commit to providing an income or stable home for the child. 

Under Michael H., that alone is sufficient to uphold the trial court’s judgment. And there 

is much more to support the trial court’s decision, so we affirm it. 

II. FACTS 

A. Events Prenatal

 K.M. was born in early September 2012. Both at the time of her 

conception (about December 2011) and at the time of her birth, her birth mother Kathleen 

was married to a man named Manuel. According to Kathleen’s declaration filed in 

support of adoption by Michael and Tasha, Kathleen went to a bar one night, and ended 

 1 Technically, Samuel’s October 16 notice of appeal, was premature as taken only from an unsigned 

minute order. However, a formal order, the equivalent of a judgment, was signed by the trial judge and filed 

October 23, 2013. We therefore deem the appeal to be from that formal order, not the mere minute order. (See Cal. 

Rules of Court, rule 8.406(d).) 
3

up having sex with three different men, so she didn’t know the child’s biological father. 

She did tell Tasha “numerous” times that Samuel “could not” be the father.2 

 Kathleen learned of her pregnancy in February 2012 and, that same month, 

told Samuel about it. The previous month Samuel had been incarcerated on a drug 

charge so the visit was at the jail, where he would remain until July. At the time 

Kathleen told Samuel of the pregnancy, she was living in a motel, having been “forced [] 

out” – Samuel’s own words – of Samuel’s father’s house, in which she had been living 

prior to Samuel’s incarceration, by Samuel’s nieces.3 Samuel characterized Kathleen’s 

situation as it stood in February 2012 as “homeless.” 

 At the jail Kathleen told Samuel she planned to have the child adopted, but 

said she wouldn’t go through with the adoption if Samuel could provide a “stable home 

environment” and “could support the family.” Samuel told her he could not – as he 

styled her statement – “‘meet her demands.’” He later testified that his reaction at the 

time was based on being in jail and not having any income, and also on the fact he suffers 

from several serious ongoing health problems, including “problems” with his liver and 

his kidneys, manifesting themselves in edema and dehydration. 

 During the course of Kathleen’s pregnancy and his own January-July 

incarceration, Samuel wrote letters to his father asking him “don’t forget to help Katie.” 

He also took, while he was in jail, six to eight weeks of parenting classes.4 The record is, 

however, clear that with the exception of procuring a baby crib, and some clothes, toys 

 2 Tasha’s declaration to that effect was not more specific as to when Kathleen made these 

statements. We should also note there that even if Kathleen’s bar story was pure fantasy and Samuel was the 

biological father of K.M. it would make no difference to the outcome of this appeal. 

3 In a question posed by his attorney in his own case-in-chief, Samuel was asked about Kathleen’s 

being “somewhat concerned” about her pregnancy. Samuel answered: “Yes. Because of her – at the moment she 

had my – my family nieces moved her out of the house while I was gone [in jail]. I had a – some family members 

while I was gone just forced her out, basically, to my father’s home and she was helping my mother, who is dying 

from – she has – she’s on hospice and she was her caregiver. And they got another person to care for her and they 

moved her out of the room while I was incarcerated.” 

4 Apparently he was transported to Santiago College for the classes. 
4

and diapers placed at his father’s house sometime after his release in July 2012, Samuel 

never paid or offered to pay any actual money for Kathleen’s and the unborn child’s 

support both before or after K.M.’s birth.5 

 Kathleen did not instigate dissolution proceedings to end her marriage to 

Manuel; he did, in March 2012. While the final judgment of dissolution of the ManuelKathleen marriage was filed in mid-June 2012, the date the status of marriage was 

terminated was September 20, 2012. K.M. was born around two weeks before that date. 

B. Birth and Post Birth

 The record is fairly clear that between July 2012 – when Samuel was 

released – and the September birth, Samuel and Kathleen were living in rooms paid for 

by prospective adoptive parents – first, a couple who originally hoped to adopt her child 

and then, in the final month, by Michael and Tasha. In that final month, Samuel and 

Kathleen were living in a motel in Buena Park near Knott’s Berry Farm. Kathleen 

admitted that the night before the birth, she took “a couple hits” from a friend’s 

methamphetamine pipe, consequently K.M. was born the next day with 

methamphetamine in her system. Samuel presented no evidence that he was away from 

the apartment that evening, or that he made any effort to try to prevent a pregnant woman 

about to give birth from ingesting a harmful, illegal drug. 

 Samuel was asleep when Kathleen went into labor. Because of mixed-up 

text messages, Samuel did not reach the right hospital until about 12 hours after the birth. 

He and his father took pictures of the baby but were otherwise not allowed in the nursery. 

Kathleen signed papers authorizing the adoption by Michael and Tasha, and reiterated the 

story there were three possible biological fathers and she did not know who was the 

 5 By the time of the hearing, Kathleen had married Samuel and was supporting his quest to block 

the adoption. She testified that after the birth Samuel “asked a couple times” of Michael and Tasha about possibly 

paying for the motel room where they put Kathleen up after the birth. However, by then the child was living with 

Michael and Tasha, and Samuel’s own testimony was clear he never offered to pay support for the child. 
5

biological father of the child. Tasha was allowed to take K.M. from the nursery the next 

morning. Kathleen signed papers waiving her right to revoke her consent to the adoption, 

and Manuel signed a waiver of his right to notice of the adoption. Samuel was not named 

on the birth certificate. Kathleen testified that, at the time, she “was afraid of him getting 

her.” 

 For two weeks after the birth Kathleen and Samuel stayed at a motel in 

Anaheim paid for by Michael and Tasha. After that, they stayed at a room in Garden 

Grove, again paid for by Michael and Tasha. 

 Within a week of the birth, Samuel drove to the courthouse where he told a 

clerk he wanted to stop the adoption, but he had no driver’s license to prove his identity. 

Sometime thereafter he obtained one and returned to the courthouse. He testified that 

because he did not know the prospective adopters’ names, and because he had no case 

number, he was unable to file anything. He also testified that on the 29th day after the 

birth he drove with Kathleen to the courthouse, but their truck broke down and the next 

court day being a holiday, he assumed he had missed the 30-day time limit to file an 

objection to the adoption. He described his state of mind at that time as “emotional, just 

drained, thinking it was over.” 

 On October 11, 2012, Michael and Tasha filed the formal adoption 

proceeding we now review. Nothing happened in the case during the rest of October, but 

Samuel was once again jailed – albeit, according to his testimony, only briefly and 

without charges – in November. He made an attempt to contact Tasha in December 

asking for pictures, but Tasha hung up, telling him to go through their lawyer. 

 Samuel was jailed again in January 2013, on charges of possessing a 

controlled substance. He stayed in jail until at least May 15. On February 13, 2013, 

while still in jail, he called the California Department of Social Services and told an 

adoption specialist he wanted custody of his child, but had no funds and asked for a pro 
6

bono attorney. The department gave him the name of an attorney, a family law center, 

and a paralegal center. Samuel presented no evidence he ever contacted any of these 

entities. 

 Rather, in May he did some legal work on his own behalf. The 

circumstances of that work were: On May 15, while still in jail, he was served with the 

adoption petition in this case. The papers contained a notice he had 30 days after the 

service of the papers to file an action to establish his own paternity. From his jail cell, 

Samuel filed, in the period May 17 through 23, a series of handwritten documents, 

essentially seeking to establish his own paternity and halt the adoption. 

 These papers generated the hearing on October 9, 2013, leading to the 

judgment at issue in this case. The trial judge found Samuel was well aware of the 

planned adoption before the birth of K.M., took no action to ever support the child either 

before or after birth, and did not qualify as a presumed father under Kelsey S. The trial 

court also found it was in the best interests of K.M. to terminate Samuel’s rights. Samuel 

himself filed the notice of appeal from the initial minute order within the week. 

III. DISCUSSION 

 The basic framework governing Samuel’s appeal was laid down by our 

Supreme Court in Kelsey S., supra, 1 Cal.4th 816. The Kelsey S. court confronted a 

statutory scheme in which a man in Samuel’s position – an unwed biological father –has 

virtually no right at all to contest an adoption.6 A man might be the biological father of 

the child (called a “natural father” in the opinion), but statutorily that, by itself, means 

nothing. Unless the man is a presumed father, he has no parental rights. (Kelsey S., 

 6 There has been no DNA test yet establishing that Samuel is, or is not, the biological father of K.M. 

Samuel claims his indigency prevented him from paying for one. He did, however, in a handwritten June 2013 

filing, “demand[]” – his word – the court pay for one. Since the cases we rely on (Kelsey, Michael H. and O.M.) all 

assumed that the unwed fathers there were indeed the biological fathers of the children involved, and because we 

conclude Samuel does not qualify under Kelsey S. for non-biological reasons, it makes no difference in this appeal 

whether Samuel had a DNA test or not. 
7

supra, 1 Cal.4th at p. 825 [noting statutory requirement of being a presumed father] and 

p. 830 [noting statutory scheme allowed mother where natural father was not a presumed 

father to “unilaterally preclude” natural father of the right he might otherwise have to 

withhold consent to adoption].) The Kelsey S. court, however, went on to conclude that if 

the natural father had shown a level of commitment to assuming the responsibilities of 

parenthood, he could, as a matter of constitutional law, qualify as a presumed father. 

(See id. at pp. 847-848.) Thus functionally, Kelsey S. expands the definition of a 

presumed father to include a man who does not otherwise qualify under the statute, as 

long as he meets a certain standard of commitment to parenthood. 

 But what is that standard? Kelsey S. itself was not a fact-based decision. It 

does not, for example, give the reader, as later cases do (indeed, as we have done here) a 

detailed account of the appellant’s behavior vis-à-vis the pregnancy.7 But while the 

court’s linguistic formulations were general, the standards enunciated by the court were 

quite clear and quite high. The man has to have made “diligent and legal attempts to 

obtain custody of his child and to rear it himself.” (Kelsey S., supra, 1 Cal.4th at p. 821.) 

And even a man who has been “indisputably ready, willing, and able to exercise the full 

measure of his parental responsibilities can have his rights terminated merely on a 

showing that his child’s best interest would be served by adoption.” (Id. at p. 847.) 

Perhaps most importantly, the man must have “‘promptly taken every available avenue to 

demonstrate that he is willing and able to enter into the fullest possible relationship with 

his under-six-month-old child.’” (Id. at pp. 838-839, italics added [quoting In re Raquel 

Marie X. (N.Y. 1990) 76 N.Y.2d 387, 403].) The emphasis on promptness was later 

repeated in the Kelsey S. court’s encapsulation of its holding: “The statutory distinction 

 7 And in fact the actual case might ultimately have gone against the man who asserted parental 

rights in the case. The Supreme Court did not say he had the right to block the adoption, it merely remanded the 

matter for further proceedings in the trial court. 
8

between natural fathers and presumed fathers is constitutionally invalid only to the extent

it is applied to an unwed father who has sufficiently and timely demonstrated a full 

commitment to his parental responsibilities.” (Id. at p. 849.) 

 Promptness and fullness were fleshed out in our high court’s next venture 

into the area of unwed fathers seeking parental rights as a matter of constitutional 

common law, Michael H., supra, 10 Cal.4th 1043. There, the high court reversed a 

determination of the appellate court that the would-be presumed father was a presumed 

father with directions to enter judgment against him because, as a matter of law, he did 

not qualify under Kelsey S. 

 In Michael H., the trial court found the biological father’s efforts to assert 

his parental relationship were “‘were nothing short of impressive,’” and “‘truly 

extraordinary.’” (Michael H., supra, 10 Cal.4th at p. 1053.) In particular, in the two 

years following the birth, the biological father had “never wavered in expressing his 

desire to take on the full responsibility of fatherhood,” and had “‘relentlessly’” sought 

visitation rights (at least by urging the matter on his attorneys). (Ibid.) Accordingly, the 

trial court blocked the adoption, and the appeal in Michael H. was by the prospective 

adoptive parents. The appellate court, however, perceiving Kelsey S. to stand for a 

“‘balancing test,’” affirmed the trial court’s decision. (Id. at p. 1054.) 

 But the appellate court had misperceived Kelsey S. If there was one clear 

theme to the Michael H. opinion, it was that prompt action by the biological father meant 

action from the very beginning of his fatherhood. Justice Mosk, writing for a six-justice 

majority in Michael H.,8 eloquently expressed the Kelsey S. unwed father problem from 

the point of view of the mother-to-be: A pregnant woman needs certainty. She must be 

 8 Justice Kennard dissented on the point as to whether the biological father had been sufficiently 

prompt, but, thinking the decision in Kelsey S. to make it retroactive was a mistake, concurred in the result because 

too much time had passed while the adoptive parents were raising the child. (See Michael S., supra, 10 Cal.4th at 

pp. 1060-1061, 1071-1073 (dis. and conc. opn of Kennard, J.).) 
9

able to plan what to do about her pregnancy. She needs stability. And those needs are 

thwarted to the degree the unwed biological father doesn’t promptly – and fully – commit 

to parenthood.9 Thus even though the biological unwed father’s post natal efforts in 

Michael H. were impressive, his initial prenatal reaction doomed his case. The Supreme 

Court noted that the trial court had also found between the time the biological father first 

learned of the pregnancy in early July 1990 until November 1990, he made no attempt to 

fully commit to his parental responsibilities. (Id. at p. 1060.) That not only required 

reversal, but reversal with directions to enter judgment concluding the biological father 

had no right to veto the adoption. (Ibid.) 

Adoption of O.M. (2008) 169 Cal.App.4th 672 adds an additional gloss to 

Michael H.’s emphasis on the need to commit fully and promptly that is pertinent here. 

In fine, O.M. obviates much discussion here. It holds that being incarcerated is no 

excuse. (See id. at p. 675.) 

 In O.M., the biological father was arrested for a parole violation (the 

violation was use of methamphetamine and marijuana) only a week after the pregnancy 

was confirmed. (O.M., supra, 169 Cal.App.4th at p. 676.) He would stay in jail for four 

months thereafter. (Ibid.) Said the court: “Here, B.R. [the biological father] learned of 

the pregnancy in February 2006, and L.T. [the mother] did not start refusing to see him at 

least until sometime in June 2006. B.R. has not established that during the intervening 

four months, he provided support to L.T. of any kind – financial, emotional, or practical. 

 9 The passage is worth quoting: “John and Margaret [the prospective adoptive parents] also contend 

their reading of Kelsey S. serves several important public policy goals. We find their points persuasive. They first 

assert that an unwed father should be encouraged to promptly inform the biological mother during pregnancy 

whether he objects or consents to the child’s adoption at birth, and that he should be denied constitutional protection 

after birth if he concealed his views during pregnancy. They stress that during pregnancy the mother must make 

many important decisions, most importantly whether to have an abortion, to prepare an adoption plan, or to keep 

the baby, and that she has only a relatively short time to make and implement her choice. It is therefore important 

that the father give the mother prompt notice whether he plans to object or consent to adoption so that she can 

evaluate that and other options on an informed basis.” (Michael H., supra, 10 Cal.4th at p. 1055, italics added.) 
10

All he has shown is that his parents furnished her with some clothing and money, though 

apparently not enough to prevent her from needing the support of T.M. and J.R. once 

they came into the picture. [¶] The record supports the conclusion that B.R. was 

prevented from supporting L.T. during the initial period of her pregnancy, before she 

began refusing to see him, not because of any unilateral action on her part, but by his 

own actions in committing the parole violations, including the use of illegal drugs, that 

led to his incarceration. We do not discern any violation of equal protection or due 

process in holding an unwed father’s own criminal activity against him when assessing 

whether he has met the criteria for Kelsey S. rights.” (Id. at p. 680, second italics added.) 

 The principles stated in Michael. H. and O.M. cover Samuel’s arguments in 

this appeal. As in Michael H., there was a clear absence of a full commitment to parental 

responsibility in the critical initial period – here, February to May, in Michael H., July to 

November – when the prospective mother needed certainty and had to be able to plan a 

future. And, just as in O.M., Samuel’s ability to step forward at the crucial point in time 

was limited by his own conduct in violating his parole and getting arrested on a drug 

charge.10

 We would also note this: Samuel’s strongest evidence that he was willing 

to commit to full parental responsibility in the prenatal period was his writing to his 

father from jail asking his father “don’t forget to help Katie.” But even that evidence is 

undercut by the fact that after Samuel’s incarceration and during the critical early months 

of pregnancy, Kathleen was forced out of Samuel’s father’s home and rendered homeless. 

The prospect of being pregnant with a child not by her husband and being homeless to 

boot must have been terrifying. And yet that is the position Kathleen found herself in 

because of Samuel’s violation of his parole. 

 10 Samuel contended the charges against him were false when he was re-arrested after K.M.’s birth. 

But the record is absent of any assertion that his initial arrest in January 2012, was anything but valid. 
11

 Nor did Samuel’s efforts at committing to parenthood include any effort on 

his part to try to dissuade Kathleen from ingesting methamphetamine late in her 

pregnancy. What was someone doing with a methamphetamine pipe in Samuel and 

Kathleen’s apartment the night prior to K.M.’s birth? 

 Moreover, even Samuel’s efforts in the post-natal period were less than 

impressive. (And certainly less impressive than the unwed father’s efforts were in 

Michael H.) Even crediting Samuel’s testimony that he was arrested on false charges, he 

never quite got his act together in asserting his legal rights with regard to K.M. For 

example, in February 2013, he was given three legal referrals who, according to the 

adoption specialist’s report, would have helped him free of charge. By that time he 

certainly would have had access to the case number to give to one of the referrals. But he 

didn’t. 

 The case relied on by Samuel, Adoption of H.R. (2012) 205 Cal.App.4th 

455, is inapposite. There, the trial court did find the biological father was a presumed 

father under Kelsey S., and the appellate court found substantial evidence to support the 

trial court’s conclusion. While H.R. didn’t discuss Michael H. at all, it is relatively clear 

from the opinion that the biological father there had fully committed to his parental 

responsibilities in the crucial prenatal period. (See id. at p. 457 [“Long before minor was 

born, father had sought to establish his parental rights.”].) 

IV. DISPOSITION 

 Because Samuel does not qualify as a presumed father under Kelsey S., we 

need not consider the impact of the trial court’s finding that termination of Samuel’s 

parental rights and adoption by Michael and Tasha is in K.M.’s best interest. Nor need 

we consider with the now-academic problem of whether, under Dawn D. v. Superior 
12

Court (1998) 17 Cal.4th 932, Samuel even had standing to contest the adoption in the 

first place. The judgment of October 23, 2013, terminating Samuel’s parental rights for 

adoption is, accordingly, affirmed. Respondents are to recover their costs on appeal. 

 

 BEDSWORTH, ACTING P. J. 

WE CONCUR: 

MOORE, J. 

THOMPSON, J.