IN RE: ANGELA A.

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Court of Appeal, Second District, Division 2, California.

IN RE: ANGELA A., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. James A., Defendant and Appellant.

No. B175633.

Decided: May 26, 2005

Karen B. Stalter, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent. No appearance on behalf of Minor.

Appellant James A., the stepfather of 15-year-old Angela A., appeals from the juvenile court's order denying his motion for presumed father status.   Because we find that the conclusive presumption of the biological father's paternity under Family Code 1 section 7540 should not preclude consideration of appellant's motion for presumed father status under section 7611, subdivision (d) under the circumstances presented here, we reverse the juvenile court's order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Minor Angela A., born in October 1989, is the biological child of Angela M.A. (mother) and Dario M., who were married and living together at the time of her birth.   Dario is named on Angela's birth certificate as her father.   Mother and Dario separated when Angela was a year and a half and divorced when she was two.   Following the separation, Dario “ ‘kept bothering’ ” mother, and she sent Angela to live with relatives in Venezuela for a few months when Angela was approximately two and a half.   While Angela was away, mother met appellant and the three have lived together since Angela was three years old.   Mother and appellant married when Angela was five.

According to mother, Angela knew that Dario was her biological father, but this was never discussed in the family.   Angela, on the other hand, thought that appellant was her biological father until these dependency proceedings commenced.   For the past 12 years, Angela has lived with mother and appellant in a family unit.   Angela calls appellant “Dad,” and uses his last name.   Appellant stated that when he first met Angela, it was a “real blessing” to have her as a daughter, that she was a “treasure” growing up and a “daddy's girl” who helped him around the house.

According to appellant and mother, they began to have trouble with Angela after she entered high school and became more rebellious. Mother discovered that Angela was missing from her bed one night and called the police.   Angela claimed that she was out looking for her cat.   A few weeks later, mother discovered letters in Angela's backpack suggesting that she had been sneaking out of the house to see boys.   Mother and appellant became very upset and appellant, with mother's encouragement, grabbed Angela by her neck, banged her head against a wall, punched her in the eye, and kicked her on the ground.   After Angela reported the incident at school, mother and appellant were arrested and Angela was detained in foster care by the Los Angeles County Department of Children and Family Services (department).   The department then filed a petition under Welfare and Institutions Code section 300 against mother and appellant, who was identified as Angela's father.

Appellant subsequently admitted that he was not Angela's biological father and that he had not adopted her.   Angela had had no contact with her biological father since she was approximately two years old, but when he received notice of the dependency hearings, he called mother to express concern about Angela and said that he would like to try to build a relationship with Angela.   After mother gave him the phone number for Angela's foster home, Dario called Angela, who “tearfully reported” to her foster mother that Dario had threatened to kidnap her.   Angela reported that she told Dario she did not want to talk to him again, and she informed the social worker that she “does not know [Dario] and does not wish to reside with a virtual stranger.”   Although he was given notice of the dependency proceedings, Dario has never appeared.

Shortly thereafter, appellant filed a motion seeking presumed father status and/or de facto parent status, which mother joined.   Although appellant did not specify the statutory provision upon which his motion was based, it is apparent that the motion was based on the facts that he had received Angela into his home and openly held her out as his own child, and thus came within the provisions of section 7611, subdivision (d).  Nonetheless, in an unsigned declaration attached to the motion, appellant requested only that he be granted “de facto status.”   The department had no objection to appellant proceeding as a de facto parent but opposed the request for presumed father status on the ground that Dario was conclusively presumed to be Angela's father under section 7540 because he was married to and cohabiting with mother when Angela was born.   At the hearing on the motion, Angela's counsel stated that she did not believe there was any legal basis for granting appellant presumed father status.   The court agreed and, without making any factual findings, denied the request for presumed father status.   The court deferred determination of the issue of de facto status until the disposition hearing, finding appellant to be a “prospective de facto parent awaiting disposition.”   In the meantime, over the department's objection, the court allowed appellant to participate in the proceedings because allegations were pending against him in the petition and denied the department's request for a stay on the issue of whether appellant had standing to participate.

One day after the court's ruling, the department filed an amended petition adding an allegation against Dario, whom it identified as Angela's father, for his failure to support her since the age of one and a half, and identifying appellant as Angela's stepfather.

The department then filed a petition for rehearing challenging appellant's standing to participate in the jurisdictional phase of the proceedings, which the court denied.   Thereafter, the department filed a petition for extraordinary writ with the appellate court and sought an immediate stay of the juvenile court's prior order setting the matter for adjudication on the ground that appellant had no standing to participate.   A stay was granted to allow the juvenile court to determine whether appellant qualified as a de facto parent.   The court subsequently granted appellant de facto parent status pursuant to the department's stipulation.

The court conducted a combined jurisdiction and disposition hearing and sustained the allegations in the amended petition pertaining to physical abuse of Angela by mother and appellant and their failure to protect her, and Dario's failure to provide support to Angela.   The court declared Angela to be a dependent child and ordered that she remain in the care and custody of the department.   The court also ordered that reunification services be provided to mother and appellant in the form of parent education, conjoint counseling with Angela when appropriate, and individual counseling to address the case issues, including anger management.   Both mother and appellant were allowed monitored visits with Angela.   The court noted that both mother and appellant were in compliance with the case plan and appellant's counsel represented that appellant had nearly completed his parent education.   The court denied reunification services for Dario.   Appellant filed a notice of appeal on September 13, 2004 from the denial of his motion for presumed father status.2

DISCUSSION

Appellant contends the juvenile court erred in denying his request for presumed father status because the policies underlying the conclusive presumption of Dario's paternity under section 7540 would not be advanced by application of the presumption under the factual circumstances here.   He argues that while both he and Dario qualify as presumed fathers under section 7611, appellant's status is grounded on stronger considerations of policy and logic.

 “In dependency proceedings, fathers are divided into four categories:  de facto fathers, alleged fathers, natural fathers and presumed fathers.   A man, such as a stepfather, who has assumed the role of parent is a ‘de facto father.’   A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’   A man who has been established to be the biological father is a ‘natural father.’   A man who has held the child out as his own and received the child into his home is a ‘presumed father.’   A ‘natural father’ can be, but is not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not necessarily, a ‘natural father.’ ”  (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, 116 Cal.Rptr.2d 123, fns. omitted.)  “ ‘The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status.’ ”  (In re Christopher M. (2003) 113 Cal.App.4th 155, 159, 6 Cal.Rptr.3d 197.)  “Presumed father status ranks highest.”  (In re Jerry P., supra, at p. 801, 116 Cal.Rptr.2d 123.)   As appellant points out, only mothers and presumed fathers are entitled to reunification services, including custody of the minor.  (In re Zacharia D. (1993) 6 Cal.4th 435, 448, 451, 24 Cal.Rptr.2d 751, 862 P.2d 751.)   Though appellant was granted reunification services, the issue of appellant's status is not moot because it may have consequences for him in the future.3  (See Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752, 45 Cal.Rptr.2d 333 [if a de facto parent is given services to which he is not entitled, he has no standing to complain later that such services were unreasonable or that they should not be terminated].)

Section 7540

Section 7540 provides as follows:  “Except as provided in Section 7541, the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”   Section 7541 provides that during the first two years of a child's life, biological paternity can be established under certain circumstances, based on blood tests.   In In re Jesusa V. (2004) 32 Cal.4th 588, 10 Cal.Rptr.3d 205, 85 P.3d 2, our Supreme Court noted that the Legislature had provided that evidence of biological fatherhood could rebut the conclusive presumption under section 7540, and that “the conclusive marital presumption in section 7540 is not really a presumption at all but is instead a ‘rule of substantive law.’ ”   (Id. at. pp. 613, 614, 85 P.3d 2.)

It is undisputed that Dario is the biological father of Angela and that he and mother were married and living together at the time of Angela's conception and birth.   There is no evidence that Dario was sterile or impotent.   Indeed, he had fathered a son with another woman before he married mother.   Appellant does not attempt to-and could not-rebut section 7540's conclusive presumption with biological evidence.   Instead, appellant relies on the proposition that “a court may refuse to apply the conclusive presumption when its underlying policies are not furthered.”  (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115, 113 Cal.Rptr.2d 669.)  “Traditionally, it was stated that the presumption was designed to preserve the integrity of the family unit, protect children from the legal and social stigma of illegitimacy, and promote individual rather than state responsibility for child support.”  (County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, 980, 17 Cal.Rptr.2d 797.)  “The conclusive presumption of section 7540 is a social policy statement made by the Legislature to protect the integrity of the family unit.”  (In re Kiana A., supra, at p. 1114, 113 Cal.Rptr.2d 669.)

Appellant relies on three cases in which the courts refused to apply the conclusive presumption of section 7540.   In In re Lisa R. (1975) 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, the claimant asserted that he was the child's biological father and that application of the conclusive presumption under former Evidence Code section 661 4 would violate his due process rights.5  The Supreme Court determined that the question of whether the presumption should be applied must be resolved by weighing the competing private and state interests.  (In re Lisa R., supra, at p. 648, 119 Cal.Rptr. 475, 532 P.2d 123.)   In Lisa R., the child, then six years old, was conceived while the mother was separated from her husband.   Both mother and husband later died during the dependency proceedings.   The claimant had lived with the mother before and after the child's birth, contributed to the child's support, continued to visit the child after she and mother moved away and consistently sought to assert his paternal rights.   He was also listed as the father on the child's birth certificate.  (Id. at p. 649, 119 Cal.Rptr. 475, 532 P.2d 123.)   These private facts outweighed the state's interest in maintaining the presumption.  (Id. at p. 650, 119 Cal.Rptr. 475, 532 P.2d 123.)   The court noted that “[a]lthough a state has a legitimate interest in promoting marriage, and in furtherance of that policy of not impugning a family unit [citation], that policy cannot be served when the family unit has been dissolved as here by the death not only of the mother but of the presumed father.”  (Ibid.) Accordingly, the court held that applying the presumption so as to preclude the claimant from offering evidence to prove he was the natural father violated his due process rights.   (Id. at p. 651, 119 Cal.Rptr. 475, 532 P.2d 123.)

County of Orange v. Leslie B., supra, 14 Cal.App.4th 976, 17 Cal.Rptr.2d 797 involved a somewhat different situation in that the claimant, who had had an affair with the child's mother, was attempting to avoid child support.   He argued that the trial court's refusal to apply the conclusive presumption in former Evidence Code section 621 6 violated his due process rights.   The reviewing court held that the presumption could not be applied for the purpose of allowing a father to avoid responsibility for a child he had fathered.  (County of Orange v. Leslie B., supra, at p. 980, 17 Cal.Rptr.2d 797.)   In affirming the trial court's ruling, the reviewing court applied the Lisa R. balancing test, noting that application of the conclusive presumption would not disrupt any marital union since the 13-year-old child's mother had ended her marriage prior to the child's birth, and the child had never lived with her mother's husband and knew he was not her father.  (Id. at p. 982, 17 Cal.Rptr.2d 797.)   The court found that applying the presumption would lead to a “ridiculous result” since the child would be given a father she knew was not her natural father to preserve the integrity of a family unit that never existed.  (Id. at p. 983, 17 Cal.Rptr.2d 797.)   The court also noted that by not applying the conclusive presumption, the child would be entitled to financial assistance.  (Ibid.)

In Comino v. Kelley (1994) 25 Cal.App.4th 678, 30 Cal.Rptr.2d 728, the court refused to apply the conclusive presumption of former Evidence Code section 621 where the marriage at issue was merely a “business relationship” that did not involve sexual relations and the husband had not lived with the mother and child in a family unit.  (Comino v. Kelley, supra, at p. 681, 30 Cal.Rptr.2d 728.)   Instead, as the court noted, the child had lived since birth with his biological father, whose name was listed on his birth certificate.  (Id. at p. 682, 30 Cal.Rptr.2d 728.)   The court concluded that none of the policy considerations underlying the presumption would be served by its application since there was no marital union or family unit to preserve, the interest in providing a father for the minor would not be furthered by severing the child's relationship with the only father he had ever known, and the state's interest in support would be furthered by allowing the biological father to assume the responsibility he sought.  (Id. at pp. 684-685, 30 Cal.Rptr.2d 728.)

 We agree with appellant that application of the conclusive presumption under the circumstances of this case would not further its legislative purpose.   Although Dario lived with Angela and mother in a family unit for the first year and a half of Angela's life, that family unit was dissolved by divorce almost 13 years ago when Angela was two years old.   Since that time, Angela had no contact with Dario until he called her at her foster home during these dependency proceedings.   By all accounts, the conversation was upsetting to Angela, who reported that she told Dario she did not want to talk to him again, and she informed the social worker that she “does not know [Dario] and does not wish to reside with a virtual stranger.”   To apply the presumption under these circumstances would impugn the only family unit Angela has ever known.   Angela calls appellant “Dad,” she uses his name, is close to his extended family, and is reported to be closer to him emotionally than she is to mother.   Despite the allegations of abuse, she told the social worker that she missed appellant.

Moreover, Dario has not provided any financial support to Angela for well over a decade, while appellant has supported her for the past 12 years, including providing a private education.   Application of the privilege here would lead to the absurd result of protecting a family unit that no longer exists, and giving Angela a father she has never really known and who has never shown any willingness to support her financially or otherwise.

We also find it significant that mother supports appellant in his request for presumed father status and that Dario has never come forward to assert his parental rights or to assume his parental responsibilities.   As our Supreme Court noted in In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932, the paternity presumptions are driven not by biological paternity, but by the state's interest in the welfare of the child and the integrity of the family.   As such, the familial relationship between a nonbiological father and an older child (over two years of age), resulting from years of living together in an ostensible parent/child relationship, is considerably more palpable than a relationship based only on biology and should not be lightly dissolved.  (Ibid.)

 The department concedes that in an appropriate case a court may refuse to apply the conclusive presumption of paternity, but distinguishes the cases on which appellant relies on the ground that they involved claims by a biological father, not a stepfather.   But biology by itself is not determinative.   Indeed, “a biological father's desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause.”  (In re Kiana A., supra, 93 Cal.App.4th at p. 1114, 113 Cal.Rptr.2d 669.)  “[U]nder sections 7540 and 7541 biology will control determination of paternal responsibility for a limited period early in a child's life and thereafter the predominant consideration must be the nature of the presumed father's social relationship with the child.”  (In re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1446, 53 Cal.Rptr.2d 439.)

 The department also argues that refusal to apply the privilege would result in Dario's parental rights being terminated without due process.   We disagree.   In the context of a dependency proceeding, “[a] declaration of presumed fatherhood entitles the presumed father to reunification services and custody of the child [citation] but does not itself terminate the biological father's parental relationship with the child.  [Citation.]  Termination of parental rights requires further proceedings.”  (In re Jesusa V., supra, 32 Cal.4th at p. 610, 10 Cal.Rptr.3d 205, 85 P.3d 2.)

Still, our determination that the conclusive presumption of section 7540 should not be applied here does not end the analysis.

Sections 7611 and 7612

In addition to the conclusive presumption, there are several rebuttable presumptions of natural fatherhood under section 7611,7 which appellant argues both he and Dario satisfy.   Appellant concedes that Dario qualifies as a presumed father under section 7611, subdivision (a), because he and the child's natural mother were married to each other and Angela was born during the marriage.   In Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 47, 22 Cal.Rptr.3d 606, the court observed that although distinct, the conclusive presumption in section 7540 and the rebuttable presumption in section 7611, subdivision (a) are not mutually exclusive because section 7611, subdivision (a) does not require proof of cohabitation. The court concluded that a husband who qualified as a presumed father under section 7540 could also assert alternative rights under section 7611, subdivision (a).  (Craig L. v. Sandy S., supra, at pp. 47, 50, 22 Cal.Rptr.3d 606;  see also In re Elijah V., supra, 127 Cal.App.4th at pp. 584-585, 25 Cal.Rptr.3d 774.)

Appellant argues that he also qualifies as a presumed father under section 7611, subdivision (d), in that he received Angela into his home and openly held her out as his natural child.   It is the department's position on appeal that appellant does not meet the requirements of section 7611, subdivision (d) because he never held Angela out as his natural child.   But we observe that the department took a contrary position below.   In its written opposition to appellant's motion for presumed father status, the department specifically stated as follows:  “The Department acknowledges that [appellant] has shown that he meets the definition of a presumed father under subdivision (d) of section 7611.   That subdivision creates an evidentiary presumption that a man is the child's natural father if ‘[h]e receives the child into his home and openly holds out the child as his natural child.’   There is no question that [appellant] has done this.”   We therefore give no credence to the department's contrary position on appeal.   Moreover, we agree that appellant qualifies as a presumed father under section 7611, subdivision (d).  Angela lived in appellant's home for 12 years and was treated as a daughter.   Appellant allowed her to use his name and repeatedly referred to her in interviews with the department as his “daughter.”   Angela's friends referred to appellant as Angela's “dad.”

 “Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, ‘there can be only one presumed father.’ ”  (In re Jesusa V., supra, 32 Cal.4th at p. 603, 10 Cal.Rptr.3d 205, 85 P.3d 2.)   Section 7612 addresses how these competing presumptions are to be reconciled:  “(a) Except as provided in Chapter 1 (commencing with Section 7540) ․ a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence. [¶] (b) If two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. [¶] (c) The presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.”   (In re Jesusa V., supra, at p. 603, 10 Cal.Rptr.3d 205, 85 P.3d 2.)

In its written opposition to appellant's motion for presumed father status, the department relied on the recent case of In re Jesusa V., supra, 32 Cal.4th at page 604, 10 Cal.Rptr.3d 205, 85 P.3d 2, in which the Supreme Court held that biological paternity by a competing presumed father does not necessarily defeat a nonbiological father's presumption of paternity.   The department pointed out that a majority of the court specifically stated that its holding did “not apply to biological fathers who are married to and cohabit with the mother and are therefore conclusively presumed to be the father.”   (Id. at p. 612, 10 Cal.Rptr.3d 205, 85 P.3d 2.)   Relying on this statement, the department argued that appellant could not rebut Dario's presumed paternity.   But the department appears to have abandoned this argument on appeal, as it does not even mention In re Jesusa V. in its appellate brief.   In any event, we are satisfied that nothing in Jesusa V. precludes appellant's claim.   In most situations where a child is under the age of two (as was the situation in Jesusa V.), a presumed father will only be able to rebut the conclusive presumption where a blood test establishes that he is the biological father.   Thus, if it turns out that the cohabiting husband is also the biological father, the claimant will be unable to establish presumed father status.   But numerous courts have determined that in an appropriate situation, with a child older than two, the conclusive presumption will not necessarily prevail.   Indeed, the Jesusa V. court cited with approval language used by the Colorado Supreme Court in construing a statute similar to section 7541 that the provision “ ‘does not state that blood evidence is conclusive of fatherhood in all circumstances, or that it automatically eliminates other presumptions of fatherhood.’ ”  (In re Jesusa V., supra, at p. 618, 10 Cal.Rptr.3d 205, 85 P.3d 2.)

Under section 7612, subdivision (a), a juvenile court must determine whether the case is “an appropriate action” to allow rebuttal of a statutory presumption, a matter which is entrusted to its sound discretion.  (In re Jesusa V., supra, 32 Cal.4th at p. 606, 10 Cal.Rptr.3d 205, 85 P.3d 2.)   If it concludes that it is, the juvenile court must then identify the presumption “ ‘which on the facts is founded on the weightier considerations of policy and logic’ ” under section 7612, subdivision (b).  (In re Jesusa V., supra, at p. 607, 10 Cal.Rptr.3d 205, 85 P.3d 2.)   Because the juvenile court apparently concluded that the conclusive presumption under section 7540 precluded any claim by appellant, it did not undertake such a balancing test or make any factual findings. We therefore reverse the order denying appellant's request for presumed father status and remand to the juvenile court for a determination as to whether this is an appropriate case in which to allow appellant's rebuttal and whether appellant's presumption is founded on weightier considerations of policy and logic.  “[I]n weighing the conflicting interests under section 7612, subdivision (b), the trial court must in the end make a determination which gives the greatest weight to [Angela's] well being.”   (Craig L. v. Sandy S., supra, 125 Cal.App.4th at p. 53, 22 Cal.Rptr.3d 606.)

DISPOSITION

The order denying appellant's request for presumed father status is reversed.   The case is remanded to the juvenile court for proceedings in accordance with this opinion.

DOI TODD, J.

We concur:  BOREN, P.J., and ASHMANN-GERST, J.

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