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Name: In re Elijah V.
Case #: D045050
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/15/2005
Subsequent History: Revw. den. 6/8/05

Armando appealed an order denying him reunification services with his biological son, and finding another man, Jesse, to be the presumed father. He contended that the court denied him due process when he was not allowed to establish himself as a Kelsey S. father and the court determined that Jesse was the minor’s presumed father. (See Adoption of Kelsey S. (1992) 1 Cal.4th 816 [whether a man has 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].) Jesse was married to mother, and Armando fathered the minor while Jesse was deployed. Armando did nothing to establish paternity, and mother reconciled with Jesse. Two years later, while Jesse was again deployed, mother moved to where Armando was living and allowed him to babysit the minor and his brother. The minor was removed due to physical abuse suffered in Armando’s care. Jesse was found conclusively to be the presumed father, and Armando was denied services. The appellate court found that Armando waived his right to complain that the court did not make him a Kelsey S. father because he did not make the request below. It was not sufficient that Armando asked for presumed father status and request services. A party seeking status as a Kelsey S. father must specifically address the Kelsey S. factors, which Armando did not do. Even if he did not waive his right to argue the issue, Armando did not establish that he was a father within the meaning of Kelsey S. Armando did nothing to establish paternity for the first two years of the minor’s life. Nor did the court erred when it found that Jesse was the minor’s presumed father. Mother had sexual relations just prior to Jesse’s being deployed, and the minor was born 276 days later. Therefore the parents were “cohabiting” within the meaning of the statute at the time of conception. Armando was not denied equal protection because the biological mother was granted services while he, as a biological father, was not granted services. Armando was not similarly situated to mother because he did not establish a substantial relationship with the minor. Finally, the court did not abuse its discretion when it denied services to Armando as a biological father. When a biological father has not parented the child, and there is a conclusively presumed father who has, it is the presumed father who is entitled to services. Further, the record supports the conclusion that Armando was in no position to assume custody of the minor, and that granting reunification services to him would not be in the minor’s best interest.