Pleading Wizard

BERNARD BLACK

6134 ORANGE AVE. APT.#102

LONG BEACH, CA. 90805

(562) 346-8118

REPONDENT IN PRO PER

SUPERIIOR COURT OF CALIFORNIA

IN AND FOR THE COUNTY OF LOS ANGELES

IN RE: LINETTE DESIREE BLACK; CAMERON ISIAH BLACK; AND ISAAC DEVON BLACK [Real Parties of Interest]

_____________________________________

ANGELINA GALINDO,

Petitioner,

vs.

BERNARD BLACK,

Respondent.)

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)Case No.: GARSS 1400163 MEMORANDUM OPF POINTS AND AUTHORITIES; DECALRATION BY RESPONDENT BERNARD BLACK

INH SUPPORT THEREOF:DATE: 06/03/2014

TIME: 8;30AM

DEPT: S55

In Re Guardianship of the Person of LINETTE DESIREE BLACK; CAMERON ISIAH BLACK; AND ISAAC DEVON BLACK Minors.

Now COMES BERNARD BLACK ("Respondent") in pro per, and submits the following points and authorities in OPPOSITION to the Petition for Guardianship.Dated: May ____, 2014

_____________________________________

BERNARD BLACK-Respondent

In Pro Per

INTRODUCTION

No Court has ruled that Respondent is an unfit parent. The petition does not support a finding that father is an unfit parent under the proper statutory standard or that the Respondent has abandon his children.

The Mother of the minors had some sort of agreement with the Petitioner, where as the mother let the petitioner keep the minor children, the Respondent did not know of this agreement until the filing of this petition, Respondent was aware that the minor children stayed from time to time with petitioner, however, he was unaware of the agreement between the minor children and the petitioner, that petitioner would have custody and control of his minor children. If notified of this agreement he would have made an objection to the agreement, in that, it would restrict him in any form contact and interaction with his children. There is general agreement that the children are well adjusted, loves their father, and has been properly raised. The children themselves would states their desires to remain with respondent.

The minors mother Rebecca Ruiz and Respondent have dissolved their personal relationship, but Respondent have always maintained a continuous part in the minor three childrens lives and the children and Respondent have a healthy relationship. There is no existing child custody court order, however Respondent has filed a petition for child custody and that case is pending, the child custody case was filed prior to the petition for guardianship case (See Exhibit A, filed April 29, 2014 in the San Bernardino Superior Court) . MEMORANDUM OF POINTS AND AUHTORITIES

Respondent is entitled to be first in order of persons entitled to appointment as minor children guardian, if parent is fit and proper person to be appointed. In re Kiles Guardianship (App.1 Dist. 1948) 89 Cal. App.2d 445, 200 P.2d 886; Hartman v. Moller (App. 1 Dist. 1929) 99 Cal. App. 57, 277 P. 875.In applying the law to this subject we start with the premise set forth in our Civil Code, section 200, that the mother of an illegitimate child is entitled to its custody. (Strongv.Owens(1949), 91 Cal.App.2d 336, 340 [205 P.2d 48];In re Croze(1956),145 Cal.App.2d 492, 495 [302 P.2d 595].)

Further, it is the settled law of this state that the parent of a minor child under 14 has a preferential right to be appointed guardian, and the court must recognize this right unless it finds the parent incompetent or unless such parent has knowingly or willfully abandoned the child.

Estate of Moore(1918), 179 Cal. 302, 304 [176 P. 461];Estate of Wise(1918), 179 Cal. 423, 425 [177 P. 277];In re Croze, supra.) In the present case, there has been no finding that the Respondent was not a fit and competent person to be guardian of the children, or that he abandoned the children. RESPONDENT HAS NOT ABANDON HIS CHILDREN UNDER THE STATUES

Looking to the question of abandonment first, to constitute such there must be anactual abandonment, accompanied by an intention to entirely sever, so far as it is possible to do so, the parental relationship, and throw off all obligations arising out of the same. The mere fact of separation for several years while the parent permits the child to be raised by others does not in itself establish abandonment. (Estate of Moore, supraat 305;Estate of Wise, supra;Matter of Schwartz(1915), 171 Cal. 633, 635 [154 P. 304];In re Green(1923), 192 Cal. 714, 720 [221 P. 903];In re Croze, supra.) Intent is the decisive factor, and it may be shown by the facts and circumstances. (Guardianship of Marshall(1954),124 Cal.App.2d 807, 810 [269 P.2d 160, 936].) In the Instant case Respondent have never stated in any terms that he does not like or want his children, or will not retake it from those in whose custody it is left, which would warranted the conclusion of intent to abandon. (In re Vance(1891), 92 Cal. 195, 197 [28 P. 229];In re Lew Choy Foon (1916), 173 Cal. 159, 162 [159 P. 440].) His visits to the children were very frequent, and he has when economically able to, provided money support and made gifts to the children for a number of years and maintain continuance contact and interaction with his children. Although failure to support the child does not in itself constitute abandonment (In re Green, supraat 719), it is a factor which bears on abandonment. (In re Vance, supra.)The appellant denied in court that she did not want the child, or abandoned it, but such declarations of the parent do not control determination of intent. (Guardianship of Marshall, supra.) Whereas here, there is conflicting evidence on the question of abandonment, the finding of the trial court must be upheld. (In re Lew Choy Foon, supra.)In "Kelsey S. there was a challenge to the adoption of a newborn child of an unwed mother, which was filed by the child's biological father within two days after the baby's birth. In analyzing the biological father's rights, the Supreme Court began by observing that the (California family law statute) precludes an unwed biological father from achieving presumed father status unless he is able to satisfy (the statute) by taking the child into his home and holding it out as his own. As a result of this statutory structure, the mother of such a child can deny presumed father status to the biological father by giving the baby up for adoption, thereby preventing the father from satisfying (the statutory requirement)."After extensive discussion, the court concluded that this feature of the Act was irrational for two reasons. First, a good potential father could be denied parental rights by the unilateral decision of the mother, while an unfit mother could have her rights terminated only by statutory procedures. Second, the mother could deny a model biological father presumed father status while permitting another man of dubious ability and intent to achieve presumed father status merely by allowing him to live with the child in her home for a brief period."Accordingly, the court held that, notwithstanding (the statute), if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwisehis federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.""The court emphasized that its decision applied only in narrow circumstances, when an unwed father has sufficiently and timely demonstrated a full commitment to his parental responsibilities."In deciding whether a particular biological father qualifies, the court instructed juvenile courts to consider all factors relevant to that determination. The father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate a willingness himself to assume full custody of the childnot merely to block adoption by others.

A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child. Although (the statute) makes no provision for a Kelsey S. father in its list of presumptions, a father asserting valid Kelsey S. rights may effectively qualify for presumed father status as the result of his constitutional right to parent, which overrides any contrary statutory direction."California courts have recognized that "'the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations} ... ."'Jn re James R. (2007) 153 Cal.App.4th 413, 428 (James R.); see also, e.g., Santosky v. Kramer (1982) 455 U.S. 745, 753; Stanley v. Illinois (l972) 405 U.S. 645, 651. A parent's interest in maintaining a parent-child relationship is an extremely "important interest" Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27, and termination of that right by the state must be viewed as a drastic remedy "to be applied only in extreme cases".RESPONDENT IS A FIT PARENT UNDER THE LAW

Due process requires some showing of unfitness' before a custodial parent's rights are terminated.(Quilloin v. Walcott(1978) 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511.)InAdoption of Kelsey S.,our Supreme Court extended that protection to the natural father who lacks custody but promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwise. (Adoption of Kelsey S.(1992) 1Cal.4th 816, 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216(Kelsey S.).) InKelsey S.,the court was concerned with the unequal treatment*1538of natural fathers under the adoption statutes, as compared with mothers and presumed fathers.(Kelsey S.,at pp. 823825, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) A biological mother could prevent the father from receiving the child into his home, and thereby deprive him of the status of presumed father.(Id.at p. 825, 4 Cal.Rptr.2d 615, 823 P.2d 1216). The court concluded that when a biological father has sufficiently and timely demonstrated a full commitment to his parental responsibilities, this statutory scheme violated the equal protection and due process clauses of the federal Constitution to the**651extent it permitted a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest.(Id.at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)The biological father must demonstrate a willingness himself to assume full custody of the childnot merely to block adoption by others. [Citation.] A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.(Ibid.,fn. omitted.)

InAnn S., supra,45Cal.4th 1110,90Cal.Rptr.3d701, 202 P.3d 1089andCharlotte D., supra,45Cal.4th 1140,90Cal.Rptr.3d 724, 202 P.3d 1109,our Supreme Court held thatProbate Code section 1516.5did not violate a parent's substantive due process rights by authorizing termination of a parent's legal rights without a finding of unfitness. Since a parent in a guardianship case has already relinquished parental responsibility for at least two years, while the child and guardian developed interests in a stable placement and the child's care and custody, an unfitness finding is not required.(Ann S.,at p. 1118,90Cal.Rptr.3d701, 202 P.3d 1089)The court inAnn S., supra,45Cal.4th 1110,90Cal.Rptr.3d701, 202 P.3d 1089cautioned thatProbate Code section 1516.5could be unconstitutional in unusual circumstances if the parent demonstrates a full commitment to parental responsibility.(Ann S.,at p. 1130,90Cal.Rptr.3d701, 202 P.3d 1089.)If a parent promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwisehis federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.[Citation.](Ibid.)However, a prolonged guardianship, during which all parental rights and custodial responsibilities are suspended, with the possible exception of visitation rights, is generally inconsistent with a full commitment to parental responsibilitiesemotional, financial, and otherwise.(Id.at pp. 11301132,90Cal.Rptr.3d701, 202 P.3d 1089.)The court inAnn S., supra,45Cal.4th 1110,90Cal.Rptr.3d701, 202 P.3d 1089,discussed a hypothetical situation argued by the appellant that could result in a due process violation if the parents' rights were terminated without a finding of unfitness. The court explained: [A] fully responsible parent might find it necessary to place a child in guardianship and, despite maintaining a parental commitment as fullas the circumstances permit, eventually face a termination proceedings under[Probate Code] section 1516.5. Mother posits the plight of a single mother in the National Guard, called to duty overseas, and unable to reclaim custody for two years.(Ann S.,at p. 1132,90Cal.Rptr.3d701, 202 P.3d 1089.)The court refused to invalidateProbate Code section 1516.5based on a hypothetical situation but stated that constitutional challenges could be made by particular parents based on the statute's application to them.(Ann S.,at p. 1132,90Cal.Rptr.3d701, 202 P.3d 1089see alsoCharlotte D., supra,45Cal.4th at p. 1143,90Cal.Rptr.3d 724, 202 P.3d 1109.)It seemed unlikely to the Supreme Court that a trial court would find it in a child's best interest underProbate Code section 1516.5to terminate the rights of a fully committed, responsible, and capable parent who found an extended probate guardianship unavoidable under exigent circumstances. Nevertheless, factors similar to those set out inKelsey S. for evaluating commitment to parental responsibility might support a parent's claim that thebest interest of the child standard is unconstitutional as applied to him or her.(Charlotte D.,at pp. 11481149,90Cal.Rptr.3d 724, 202 P.3d 1109.)Respondent believe and contends that it will be in the best interest of my minor children, that the proposed guardian that is seeking guardianship be denied appointed because Respondent am the biological father of the three minor children listed in the guardianship case and that Respondent be allowed to have the custody and control of his minor children.

Respondent request that this court deny the petition for guardianship filed by Angelina Galindo (AKA) Angelina Rodriguez and that the children be ordered removed from the petitioners care and be allowed to remain in the custody and control of the Respondent.CONCLUSION

Respondent asserts that for the foregoing reasons, Petitioners petition for Guardianship should be denied; Respondent has not abandon his children nor is he an unfit parent.Dated: _____________

_________________________________

BERNARD BLACK-Respondent

In Pro Per

DECLARATION BY BARNARD BLACK

I Bernard Black declare to the following1. I am the father of the following minor children, Linette Desiree Black age 7; Cameron Isiah Black age 6, and Issac Devon Black age 5.

2. I am objecting to the petitioners request for petition for guardianship on the grounds that no reason exist for the removal from custody and control of my minor children is needed because I have never abandoned my minor three children and there is no need for a guardianship control for the care of my minor three children. Listed in the Guardianship case. The mother Rebecca Ruiz and I have dissolved our personal relationship I have always maintained to be a continuous part in my minor three childrens lives and the children and I have a close relationship. There is no existing child custody court order, however I do have a pending child custody case that was filed prior to the guardianship case (See Exhibit A) filed April 29, 2014 in the San Bernardino Superior Court). The same court that the Guardianship case was filed by the petitioner).

3. I am capable, and willing to provide all the care and needs for my children health and welfare.

4. If I had been informed of the situations and circumstances that placed my minor children in the petitioner care, and if I was proper notified before my minor children were placed with the petitioner, I would have prevented this action of guardianship and took control of the care custody of my minor children thru the proper court.5. I feel at this point that it will be in the best interest of my three minor children that the proposed guardian, seeking guardianship be denied the appointed of guardianship because I am the biological father of the three minor children listed in the petition for guardianship in this case, that I be allowed to have the custody and control of my minor children. Wherefore, I request that this court deny the petition for guardianship filed by Angelina Galindo (AKA) Angelina Rodriguez and that the children be ordered to be removed from the petitioners care and be allowed to remain in the custody and control of the Respondent.9RERSPNDENTS OPPOSITION TO PETITION FOR GUADINSHIP