In Re Elijah
Armando P. appeals an order denying him services to reunify with his biological
FACTUAL AND PROCEDURAL BACKGROUND
Jesse married Michelle V. in September 2001 in Texas. The next month, they moved to San Diego. On November 12, the same day the Navy deployed Jesse, they had sexual relations. One week later, Michelle had sexual relations with Armando.
Jesse returned from deployment in May 2002. Shortly thereafter, he physically abused Michelle and the Navy ordered him to take anger management classes. While he did so, Michelle went to Texas to live with her mother. Armando helped her drive to Texas and stayed with her in her mother‘s home. Elijah was born in August 2002 and Jesse was listed on the birth certificate as his father.
After Michelle‘s mother said Elijah looked like Jesse, Armando did not want to be involved with him. Michelle, however, sought to confirm paternity and asked Armando to take a blood test. Testing revealed a 90 percent probability that Armando was Elijah‘s father, but he took no legal action to establish paternity. Michelle also had asked him to leave her mother‘s home, presumably because of his disinterest in Elijah, and he moved to Denver, Colorado. Michelle reconciled with Jesse and returned to San Diego.
By 2004, Armando had moved to Phoenix, Arizona. In June of that year, while Jesse was again deployed, Michelle took Elijah and his sibling, 10-month-old Christian V., to Phoenix so she could go to school there. She made arrangements with Armando to pay his rent in exchange for his watching her children while she went to school. Several days later, she noticed a bruise that looked like a handprint on Christian‘s face. When she later noticed he was bleeding from his ear, she took him to the Naval Medical Center in San Diego. Doctors determined the injury was “more-likely-than-not” non-accidental trauma. Consequently, the San Diego County Health and Human Services Agency (the Agency) removed 22-month-old Elijah from Michelle‘s custody and filed a
DISCUSSION
I
Armando contends the court denied him substantive due process when it did not find he was a father within the meaning of Kelsey S., supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216.
A
The Agency asserts Armando has waived his right to complain the court did not find he was a father under Kelsey S. because he did not make a request to be so declared at the hearing. We agree.
A parent‘s failure to raise an issue in the juvenile court prevents him or her from presenting the issue to the appellate court. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, 63 Cal.Rptr.2d 562.) Because Armando did not ask the court to find he was a father within the meaning of Kelsey S., he has waived his right to raise the issue here.
Armando asserts he sufficiently raised the issue of whether he was a Kelsey S. father by arguing he was entitled to presumed father status and reunification services. We disagree. The issue in Kelsey S. is whether the man demonstrated he made “a full commitment to his parental responsibilities — emotional, financial, and otherwise” and was prevented from taking the child into his home by a third party. (Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) At the hearing, however, Armando focused on facts that he claimed demonstrated he was a presumed father within the meaning of
B
Even if Armando had not waived his right to argue that he was entitled to be declared a Kelsey S. father, he has not established his substantive due process rights were violated because the evidence shows he was not a father within the meaning of Kelsey S.
A biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed parent status under
Armando made no such showing. At most, the evidence showed he sent diapers for one year and, on one occasion, $300. He offered no evidence that he was unable to make further financial contributions. The only person he told he was Elijah‘s father was his mother, and she did not believe he acted parentally. There was no evidence he publicly acknowledged Elijah was his child and when his paternity was questioned, he became uninterested in the child. Further, at most, he lived with Elijah for two weeks in Michelle‘s mother‘s home after Elijah‘s birth and in his own home for 11 days in 2004. His role in 2004 was that of a babysitter, not a parent. He never moved to San Diego to try and parent the child. He never claimed he was willing to take full custody; to the contrary, he said he was in “no position” to take Elijah and that placing the child with him would constitute “abuse.” These facts are insufficient to establish fatherhood within the meaning of Kelsey S. (In re Sarah C., supra, 8 Cal.App.4th at pp. 972-973, 11 Cal.Rptr.2d 414 [acknowledging the child as his to a few friends and family and caring for the child for a few months is insufficient to establish fatherhood within the meaning of Kelsey S. when the father never sought to be listed on the birth certificate, never completed any paperwork with his employer to have the child named as a dependent or an insurance beneficiary, never provided a home for the child, contributed money for rent or food only once, and lived with the child only briefly in the mother‘s home].)
To demonstrate a full commitment to his parental responsibilities, Armando was also required to take prompt legal action to seek custody. (Kelsey S., supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) However, he never took legal action to seek custody or to establish paternity, despite knowing shortly after Elijah‘s birth that there was a 90 percent probability he was the child‘s father. He never obtained a judgment of paternity or sought to be on the birth certificate.
Armando asserts that he should be considered a Kelsey S. father because Michelle did not let him see Elijah. However, because he did not fully commit to his parental responsibilities, her actions in this regard are irrelevant. In any event, the record does not demonstrate she kept him from fully assuming parental responsibilities. Although she admitted she did not allow him to see Elijah at times, it appears he asked to see the child on only two occasions, which does not demonstrate a wish to be a parent. In any event, we question whether Michelle actually prevented Armando from seeing the child. She kept in contact with Armando because he was Elijah‘s biological father. She allowed him to take care of the child while
Armando also complains the Agency prevented him from establishing himself as a Kelsey S. father. However, the Agency did not become involved in Elijah‘s life until he was 22 months old and did not prevent Armando from establishing a meaningful parental relationship with the child before that time. Armando has not suffered a substantive due process violation by not being declared to be a father within the meaning of Kelsey S.
II
Armando argues the court erred when it declared Jesse to be a conclusively presumed father under
The only provision of
Armando implies the court deprived him of the opportunity to establish himself as a presumed father under
Here, Armando was living in Phoenix. Although he had notice of the jurisdictional and dispositional hearing, he chose not to personally appear. His counsel told him he needed to be available to testify if necessary during the hearing, but he was not available when counsel attempted to telephone him. Counsel offered the court
III
A
Armando argues the court erred in finding Jesse was conclusively presumed to be Elijah‘s father under
Under
However, the only parties who may seek blood tests under
B
Armando asserts the court erred in applying the conclusive presumption of
To qualify as a conclusively presumed father under
Armando alleges the record shows that Michelle and Jesse were not living together when Elijah was conceived because Jesse was deployed. Because they were not physically living in the same home, he asserts the “laws of nature” barred the application of the conclusive presumption. However, Jesse and Michelle had sexual relations on November 12, 2001, the date doctors originally believed she had conceived. They were cohabitating that day because they were living in Jesse‘s military housing. Further, the average period of gestation is between 270 and 282 days. (Whitney v. Whitney (1959) 169 Cal.App.2d 209, 214, 337 P.2d 219.) Elijah was born 276 days after Jesse and Michelle had sexual relations. Thus, because Jesse and Michelle had sexual relations on the day doctors originally believed Elijah was conceived and the child was born within 276 days of the parents’ last physical cohabitation, they were cohabitating within the meaning of
IV
A
Armando asserts his right to equal protection under the
Under the equal protection clause, the Legislature may not enact statutes that “draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.” (Lehr v. Robertson (1983) 463 U.S. 248, 265, 103 S.Ct. 2985, 77 L.Ed.2d 614.) “[I]t may not subject men and women to disparate treatment when there is no substantial relation between the disparity and an important state purpose.” (Id. at p. 266, 103 S.Ct. 2985.)
However, persons are entitled to equal protection under the Fourteenth Amendment only when they are similarly situated. (People v. Carrillo (1984) 162 Cal.App.3d 585, 593, 208 Cal.Rptr. 684.) When a biological father has never had continuous custodial responsibility for his child and has not established any custodial, personal, or financial relationship with the child, the equal protection clause does not prevent the state from treating the mother and father differently. (Lehr v. Robertson, supra, 463 U.S. at pp. 267-268, 103 S.Ct. 2985.) In Lehr, the United States Supreme Court held that a man who did not appear on the child‘s birth certificate, had taken no legal action to establish paternity until adoption proceedings had begun, had not lived with the child after birth, had not provided the mother or child with any financial support, and had never offered to marry the mother, could be treated differently than the mother without violating
Like the man in Lehr, Armando had, at best, a superficial relationship with Elijah. He had lived with the child in Michelle‘s mother‘s home for approximately two weeks and had the child in his home for only 11 days. The latter occurred only because Michelle wanted to go to school where he lived and needed him to babysit. He sent token financial support only once, was not listed on the child‘s birth certificate, and took no legal action to have himself declared the father or to seek custody. He never initiated legal proceedings to obtain visits. He acknowledged to only one person that he was the child‘s father. Elijah did not view Armando as his father. Thus, as was the case in Lehr, it was appropriate for the court to treat Armando differently than Michelle because he never established a substantial relationship with the child. Simply stated, “parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.” (Lehr v. Robertson, supra, 463 U.S. at p. 260, 103 S.Ct. 2985, italics omitted.)
Armando relies on In re Jerry P. (2002) 95 Cal.App.4th 793, 116 Cal.Rptr.2d 123 for the proposition that
B
Armando contends the court abused its discretion by not granting him services under
A biological father may receive reunification services only if the court finds that granting him services would benefit the child. (
Armando also cites no authority that the court may order services for the
In any event, the record did not support a grant of reunification services or visits. Armando admitted it would “be abuse” to place Elijah with him and said he was in “no position” to take custody of the child. If he could not take the child, there was no reason to give him services. (See, e.g., Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628, 53 Cal.Rptr.2d 41 [a non-custodial parent who does not seek custody is not entitled to services].) Further, the Agency believed it would be detrimental to place Elijah with Armando because he was being investigated for child abuse, had no relationship with Elijah, and stated he could not care for the child. Armando offered no contrary expert evidence. The court did not abuse its discretion in declining to grant services or visitation to Armando.
DISPOSITION
The order is affirmed.
WE CONCUR: AARON and IRION, JJ.
Notes
Neither section 7551 nor In re Raphael P., supra, 97 Cal.App.4th 716, 118 Cal.Rptr.2d 610, relied on by Armando, compel a different conclusion. Section 7551 provides that a court may, on its own motion, order paternity testing in a civil action or proceeding in which “paternity is a relevant fact.” Here, paternity would become a relevant fact only if there is no conclusively presumed father. Because Jesse was a conclusively presumed father, paternity was not at issue and the court had no need to order blood tests.
The issue in In re Raphael P., supra, 97 Cal.App.4th at pages 723-736, 118 Cal.Rptr.2d 610, was whether the presumption of section 7611, subdivision (d) could be rebutted by genetic testing showing the man is not the biological father. That is also not the issue here.