gno.law

K.W. v. T.I. CA4/1

California Court of Appeal · D066301 · 2015-06-05 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. DN173720
Trial judge
David G. Brown
Outcome
affirmed — Affirmed.
Area
family
Panel
Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:55Z · confidence high

The trial court dismissed the plaintiff's petition to establish custody rights with prejudice, finding he failed to prove presumed father status under Family Code section 7611, subdivision (d). The Court of Appeal affirmed the dismissal, concluding the trial court did not abuse its discretion and the appellant failed to provide adequate legal argument to support his claims.

Ruling reviewedStandardThe courtThe model
Dismissal of petition to establish custody rights with prejudice
“The family court had an adequate basis in the evidence to exercise its discretion in the manner it did. We affirm.”
abuse of discretioncorrectagree with court
agree with court

Authorities

  • relied: Adoption of Kelsey S. (1992) 1 Cal.4th 816 — Establishes the framework for determining presumed father status under the Uniform Parentage Act, requiring a showing of willingness to assume full custody.
  • relied: Adoption of Michael H. (1995) 10 Cal.4th 1043 — Clarifies that a man must physically bring the child into his home and openly admit paternity to become a presumed father.
  • relied: In re Spencer W. (1996) 48 Cal.App.4th 1647 — Foundational facts for the presumption of paternity must be established by a preponderance of the evidence.
  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — Judgments are presumed correct on appeal, and all inferences are made to support the judgment when the record is silent.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — Arguments not supported by reasoned argument and citations to authority are treated as waived.

The appellate opinion: sound — The opinion is sound because it correctly applies the abuse of discretion standard to the trial court's factual findings regarding presumed father status. It also correctly applies the waiver doctrine to the appellant's insufficiently briefed arguments, which lacked legal citations and reasoned analysis.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

The San Diego family court, after an evidentiary hearing on whether K.W. was a presumed father under Family Code section 7611, subdivision (d) and Adoption of Kelsey S., found the mother credible, found K.W. had not received the child into his home, publicly acknowledged paternity, assisted with expenses, or promptly sought custody, and granted the mother's motion to strike, dismissing his custody/parentage petition with prejudice. The Court of Appeal, with no respondent's brief filed, affirmed, holding that the presumption of correctness and the appellant's failure to present cogent argument or a record showing error defeated his challenge.

Ruling reviewedStandardThe courtThe model
Granting the mother's motion to strike and dismissing the parentage/custody petition with prejudice because K.W. failed to establish presumed father status under section 7611(d) and the Kelsey S. criteria.
“The court made findings that plaintiff "did not seek prompt legal action to seek custody of the child and has demonstrated conduct showing he would be an unfit parent." The motion to strike was granted and the petition was accordingly dismissed with prejudice.”
mixedcorrectunsure
The appellate court's deference to the trial court's credibility and foundational-fact findings under Spencer W. and Denham is orthodox, and the finding of no public acknowledgment of paternity independently defeats a 7611(d) presumption. However, the opinion treats failure to attain presumed-father status as fatal to the entire petition without addressing whether a biological father (99%+ DNA match) of a child with no presumed father may be adjudicated the parent under the Uniform Parentage Act (e.g., section 7630(c)) and then seek custody; dismissal with prejudice on that unexamined premise is the gap. The opinion also blurs Kelsey S. (a constitutional doctrine for biological fathers opposing adoption) with the statutory 7611(d) test, though the result does not turn on that conflation. Because appellant may have forfeited these points and the record is thin, I cannot say the court erred.
The family court's factual findings that the mother was credible and that K.W. did not demonstrate willingness to assume custody, publicly acknowledge paternity, or assist with expenses.
“Even if we liberally construe the opening brief and its contentions, we cannot rehear the evidence and must instead presume that it supports the family court's determinations.”
substantial evidencecorrectagree with court
Under Denham, the appellant bears the burden to furnish an adequate record and affirmatively show error; the opinion indicates the appellate court relied on the minute order and formal order and could not reweigh testimony. K.W.'s brief sought reconsideration of evidence rather than identifying a legal defect, so presuming the evidence supports the findings was correct.
Conduct of the January 16, 2014 hearing, including the alleged failure to consider K.W.'s subpoenaed witness and his claim he was denied a fair hearing.
“the absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived.”
unclearcorrectagree with court
The opinion applies the established rule from Falcone & Fyke and Nelson v. Avondale that unsupported contentions are forfeited, and notes the orders reflect the court took testimony from multiple witnesses and considered exhibits. Pro per litigants are held to the same rules under Wantuch, so treating the undeveloped fairness claim as waived is consistent with authority.

Authorities

  • relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment is presumed correct; all intendments and presumptions are indulged to support it on matters where the record is silent, and the appellant must affirmatively show error on an adequate record.
  • relied: In re Spencer W. (1996) 48 Cal.App.4th 1647 — A man claiming section 7611(d) presumed-father status bears the burden of proving by a preponderance both reception of the child into his home and open holding out as his natural child; the trier of fact decides whether those foundational facts exist.
  • relied: Adoption of Michael H. (1995) 10 Cal.4th 1043 — To become a presumed father, an unwed man must both openly and publicly admit paternity and physically bring the child into his home; Kelsey S. rights require a prompt, full commitment to parental responsibilities, not merely blocking adoption.
  • misapplied: Adoption of Kelsey S. (1992) 1 Cal.4th 816 — Kelsey S. holds that an unwed biological father who promptly comes forward and demonstrates a full commitment to parental responsibilities has a constitutional right to withhold consent to adoption absent a showing of unfitness; it does not define or supply the elements of presumed-father status under section 7611(d), which the opinion suggests it does.
  • relied: In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814 — Contentions unsupported by cogent legal argument or citation to authority may be treated as waived on appeal.
  • relied: Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857 — Appellate briefs must provide argument and legal authority; points not supported by reasoned argument are treated as waived.
  • relied: Wantuch v. Davis (1995) 32 Cal.App.4th 786 — Self-represented litigants are entitled to the same but no greater rights than represented litigants and are presumed to know procedural rules.
  • relied: Estate of Beard (1999) 71 Cal.App.4th 753 — A judgment correct on any theory will be affirmed regardless of the trial court's stated reasoning.
  • relied: D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 — An appellate court reviews the correctness of the ruling, not the trial court's reasons, and affirms if the result is correct on any ground.

The appellate opinion: sound with gaps — The result is defensible given the presumption of correctness, the trial court's unchallenged credibility and foundational-fact findings, and the appellant's failure to present cogent argument or an adequate record. The opinion nonetheless conflates Kelsey S. with the section 7611(d) presumption and never addresses whether a DNA-confirmed biological father of a child lacking a presumed father could be adjudicated a parent under the Uniform Parentage Act notwithstanding his failure to qualify as a presumed father, leaving the with-prejudice dismissal unexamined on that point.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 6/5/15 K.W. v. T.I. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). 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

K.W., D066301 Plaintiff and Appellant, v. (Super. Ct. No. DN173720)

T.I., Defendant and Respondent.

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

Brown, Judge. Affirmed.

K.W., in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Plaintiff K.W. (plaintiff) appeals from an order of the family court that dismissed his petition to establish custody rights for D.T., the minor child of defendant T.I.

(defendant), based on plaintiff's claim of parentage. The family court granted the motion by defendant to strike the petition, with prejudice, based on the showings made at the hearing. Representing himself on appeal, plaintiff contends the petition was erroneously dismissed based upon his previous efforts to establish his parentage and the alleged lack of a fair hearing. At plaintiff's request, this court augmented the record to provide the history of the prior proceedings. Defendant has not filed a brief.

We have reviewed the record and conclude plaintiff's challenges to the dismissal order are not well taken. The family court had an adequate basis in the evidence to exercise its discretion in the manner it did. We affirm.

I

CURRENT PETITION AND PREVIOUS ORDERS

We set forth only those facts that are relevant to the issues on appeal. The record shows that defendant gave birth to the minor child in 2006 and did not identify a father on the birth certificate. Plaintiff's declaration states that at that time he was 16 years old and he signed a paper giving up his parental rights. The parties were never married.

Defendant got married for a brief time to the child's stepfather, who considered adopting the child, but did not follow through.

According to a minute order of February 14, 2013, plaintiff's parental rights had been terminated in December 2012 in connection with the adoption request. On February 14, 2013, plaintiff brought a motion to set aside the termination of his parental rights, and the court granted the motion and dismissed the pending adoption petition for the child. The court advised plaintiff he would need to seek custody and visitation orders in the family court. Plaintiff filed such a petition, also requesting appointment of minor's 2 counsel, and obtained a hearing date in June 2013. The matter was continued to August 27, 2013.

After the August 27, 2013 hearing, the court issued findings and orders after hearing to allow further proceedings on whether plaintiff was a presumed father under Family Code1 section 7611, subdivision (d) (the Uniform Parentage Act). The court ordered DNA testing of the child and set a trial for January 16, 2014, on presumed father status under Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Depending on the outcome of that trial, the court would schedule further proceedings on remaining issues of custody, visitation and support. The request for appointment of minor's counsel was denied without prejudice.

Plaintiff obtained an appointment for DNA testing but defendant did not cooperate until shortly before the hearing. On January 15, 2014, plaintiff filed an answer on the Kelsey S. presumed father issues, claiming he did not realize he had signed away his parental rights when the child was born, and he believes his rights were reinstated in 2012. He attached DNA testing results for himself and the child, showing a 99 percent plus probability that he is the biological father.

At the January 16, 2014 trial, defendant was represented by counsel and plaintiff represented himself. The court (Judge Brown) heard testimony from plaintiff, defendant, and other witnesses, and received an agency report from family court services. The court ruled that defendant was credible and that plaintiff had not demonstrated a willingness to 1 All further statutory references are to the Family Code. 3 assume custody of the child and did not make a public acknowledgment of paternity, nor assist with expenses. The court made findings that plaintiff "did not seek prompt legal action to seek custody of the child and has demonstrated conduct showing he would be an unfit parent." The motion to strike was granted and the petition was accordingly dismissed with prejudice. Counsel for defendant was directed to prepare the findings and order after hearing. This was not done until July 16, 2014.

On March 12, 2014, in another case number, plaintiff sought to challenge Judge Brown from conducting further proceedings, but the request was denied and the court noted the current case had been dismissed with prejudice. This appeal was filed to challenge the order dismissing this case.

II

APPLICABLE STANDARDS

A. Basic Rules of Review On appeal, the judgment of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Accordingly, if the judgment is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. (Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All intendments and presumptions are made to support the judgment on matters as to which the record is silent. (Denham, supra, at p. 564.) An plaintiff has the burden to provide an adequate record and affirmatively show reversible error. (Ibid.)

4 It is well established that "[i]n propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) For any plaintiff, "[a]ppellate briefs must provide argument and legal authority for the positions taken.

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

B. Arguments on Appeal; Statutory Criteria As best we can determine from the opening brief, plaintiff claims that he had fully established his parental rights as of February 2013, but defendant did not cooperate.

However, the record does not support a finding that plaintiff was ever found to be a presumed father before the subject hearing took place in January 2014. At that time, he was given an opportunity to attempt to prove he was entitled to parental rights, but he was unable to do so, after testimony from witnesses.

Under section 7611, subdivision (d), there is a rebuttable presumption that a man is the natural father of a child if he "receives the child into his [] home and openly holds out the child as his [] natural child." For the rebuttable presumption to arise, plaintiff had the burden of establishing by a preponderance of the evidence that both elements existed:

reception into his home, and his open and public acknowledgement of paternity. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652-1653 [foundational facts must be established by preponderance of evidence, to obtain benefit of presumption].) As the 5 trier of fact, the family court had to determine whether the foundational facts were established by a preponderance of evidence. (Id. at p. 1653.)

Under Kelsey S., supra, 1 Cal.4th 816, whether presumed father status can be established under section 7611, subdivision (d), depends upon whether the applicant promptly attempted to assume full parental responsibilities, and showed " 'a willingness himself to assume full custody of the child—not merely to block adoption by others.' "

(Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054, 1051 ["to become a presumed father, a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home," italics omitted]; 10 Witkin, Summary of Cal. Law (10th ed.

2005) Parent and Child, § 39, p. 98.) Plaintiff provided his declarations and answers showing the trial court that he had signed away his parental rights when he was 16, and he told the court he did not pay attention to what the form said and he was a "dumb young teenager who didn't know any better."

Be that as it may, we are not permitted to relitigate this case and plaintiff has not brought forward any arguments or facts to show the order failed to meet the above legal standards. Essentially, his opening brief claims that different evidence should have been considered or provided. For example, he argues: "I was never allowed to see my son not even when he was born she kicked me out the hospital and didn't put my name on the birth certificate and cheated on me when we were together. That is why I requested a DNA tests she is a gamest. . . . [Sic.] [¶] My subpoena witnesses he never considered Social worker: Natasha Hood's testimony about [defendant] falsified evidence in the 6 adoption case. [Sic.] I had to augment my case so I submitted new proof to support my claim in what I'm saying. [¶] This couldn't be fair. My rights are being refused with no grounds."

According to the minute order and the formal order, the court took testimony from plaintiff and defendant, as well as other witnesses, and it received and considered the exhibits offered. Given the relevant statutory criteria and the record provided, we cannot find there was any error or any abuse of discretion in the family court's dismissal of the petition. We are not bound to develop plaintiff's argument for him, and "the absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.) Even if we liberally construe the opening brief and its contentions, we cannot rehear the evidence and must instead presume that it supports the family court's determinations. (Denham, supra, 2 Cal.3d at p. 564.) We affirm the dismissal of the petition.

DISPOSITION

The order striking and dismissing the petition is affirmed. Each party shall bear its own costs.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

Cites, in this corpus