Adoption of T.K., a Minor

Adoption of T.K., a Minor.

H.B. et al.,

Plaintiffs and Respondents,

v.

D.N.,

Defendant and Appellant;

K.K.,

Defendant and Respondent.

No. G050676

Super. Ct. Nos. 13P001806 &

13AD000334)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed November 4, 2015

ORDER DENYING REHEARING

AND MODIFYING OPINION;

NO CHANGE IN JUDGMENT

     The petition for rehearing is DENIED.

     The opinion filed October 7, 2015, is hereby modified in the following particulars:

     1.  On page 2 of the slip opinion, paragraph 2 of the Introduction, after the sentence that reads ?He even falsified his check book register to make it look like he had sent money to her when he had not.? insert this footnote:

     ?^fnIn a petition for rehearing, D.N. disputes this depiction of his financial efforts, arguing he made a number of payments toward K.K.?s expenses, including putting money into a PayPal account and sending her checks.  The problem is, the trial court was very explicit in finding D.N. to be totally lacking in credibility in financial matters.  We quote from the trial court?s statement of decision:  ?Both [K.K.] and [D.N.] testified at length and both attempted to provide some context to certain e-communications, and during the trial, [D.N.] presented himself as being emotionally, financially, and physically supportive, as allowed by [K.K.].  [D.N.] claimed that within the limits and boundaries established by [K.K.], he was supportive,  . . . .  enough-so to qualify as a presumed father.  In general and after viewing the width and breadth of his testimony, [D.N.] was not credible; in some instances, the court drew the inference his testimony was intended more to mislead than to inform.  In other instances, his testimony was not truthful.?  (Italics added.)  The trial court?s finding means that D.N.?s own testimony as to what he proffered is unreliable.?

     2.  On page 5 of the slip opinion, in the first paragraph of Part B, omit the sentence that currently reads:  ?On appeal D.N. makes no effort to show he paid for any significant portion of those amounts despite having had a job since June 21.?

     3.  On page 6 of the slip opinion, paragraph 4, the sentence that currently reads ?He would later send an email to them falsely claiming K.K. had used cocaine, marijuana and alcohol during her pregnancy.? should be changed to read:  ?He would later send an email to them claiming K.K. had used cocaine, marijuana and alcohol during her pregnancy, claims which he later admitted to the trial court were exaggerated.?

     4.  On page 9 of the slip opinion, in what is now footnote 4 (and what will be after the above modification footnote 5) insert this sentence at the end of the footnote:  ?As noted, the trial court specifically found D.N.?s financial evidence to be unreliable.?

     5.  On page 15 of the slip opinion, first full paragraph, after the sentence that is ?Indeed, comparing the facts in Michael H. with those in H.R., it seems to us that in Michael H. there was a far stronger case for Kelsey S. fatherhood than in H.R., but the father lost in that case.?  insert this footnote:

     ?^fnMichael H. in fact reflects a strong rejection of a general ?balancing? approach that would excuse less than full financial and emotional commitments.  In Michael H., the trial court used a balancing approach to find that the father did qualify under Kelsey S., and the appellate court used a balancing approach to uphold the trial court?s conclusion.  After all, the father had a lot of factors going for him.  (Michael H., supra, 10 Cal.4th at pp. 1053-1054.)  But the Supreme Court reversed based on a single point showing less than full emotional commitment, namely the fact the father did not come forward to support his fatherhood promptly enough.  (Id. at p. 1060.)  If the Supreme Court in Michael H. had thought balancing was the appropriate approach, it seems to us the judgment would have been affirmed rather than reversed.?

These modifications do not affect the judgment.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.