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Court of Appeal, Fourth District, Division 1, California.

ESTATE of Willis CORNELIOUS, aka Willis Cornelius, Deceased. Trudy Ann HALL, Appellant, v. Hettie TAYLOR, Respondent.

Civ. 24624.

Decided: July 08, 1982

Lloyd Edward Tooks, San Diego, for appellant. Pinney & Caldwell and Clifford C. Caldwell, El Centro, for respondent.

Trudy Ann Hall appeals a superior court order denying her petition for appointment as administrator of the estate of Willis Cornelious.

Willis Cornelious died on July 24, 1980. On October 29, 1980, Hettie Taylor, respondent here and the nominee of the Cornelious' two sisters in Arkansas, filed a petition in superior court to be appointed administrator of Cornelious' estate. On November 6, 1980, Trudy Ann Hall filed a petition in the same court seeking to be appointed administrator of Cornelious' estate. Hall alleged she was Cornelious' daughter.

At a hearing on the two petitions, the following facts were established or accepted as proven:

Hall's mother, Arzina Fuller, was married to David Fuller in 1933. The couple lived together as husband and wife from 1933 through to the time of trial, including the time when Hall was conceived. Hall's birth certificate names David Fuller as her father. David was not impotent during the period of Hall's conception. David and Arzina Fuller had six children other than Hall. Arzina testified the five children born before Hall and the child born a year and a half after Hall were all fathered by David.

Arzina testified Cornelious was Hall's father. Hall was told of this when she was 15. David Fuller was never told. Hall frequently visited Cornelious after being told she was his daughter. She accompanied Cornelious on errands and visits to the doctor, and stayed overnight in his home. Cornelious acknowledged Hall as his daughter in front of his friends. Hall remained a part of the Fuller household until she became emancipated from the family. She was 27 at the time of trial. Hall has the sickle cell anemia trait, which means either her natural mother or natural father must have either the trait or the disease. Since neither Arzina Fuller nor David Fuller had the sickle cell disease or trait, it is biologically impossible for David to have fathered Hall.

The trial court appointed Hettie Taylor administrator of the estate as the nominee of Cornelious' sisters. The court concluded Hall was the daughter of Arzina and David Fuller, applying the conclusive presumption of Evidence Code section 621.1 The court held the parent-child relationship necessary for Hall's priority of right to letters of administration to the estate of Cornelious (Prob.Code, ss 422, 423) did not exist.

Hall contends the conclusive presumption in Evidence Code section 621, subdivision (a), is unreasonable, arbitrary, capricious and a denial of due process as applied against her in this action. She cites County of San Diego v. Brown, 80 Cal.App.3d 297, 145 Cal.Rptr. 483, as basing due process analysis on whether the state has reasonable alternative means of making such a crucial determination, other than by the conclusive presumption (id. at p. 305, 145 Cal.Rptr. 483). She interprets this language to allow her to establish a reasonable alternative method of determining David Fuller is not her father. She claims to have provided an alternative method in the sickle cell anemia test, which proves David is not her biological father. However, her interpretation of Brown is mistaken.

The “crucial question” according to Brown, supra (80 Cal.App.3d 297, 145 Cal.Rptr. 483), is not whether there are alternative means to establish the presumed father's nonpaternity, but whether there are reasonable means to establish the alleged biological father's paternity (id. at p. 306, 145 Cal.Rptr. 483). Brown thus reaffirms Kusior v. Silver, 54 Cal.2d 603, 7 Cal.Rptr. 129, 354 P.2d 657, holding blood test evidence cannot be used to controvert a conclusive presumption of paternity. The reasoning is simple: Although in some cases blood factors may operate to eliminate a certain man as the father, they do not designate a specific individual as the biological father. The purpose underlying the statutory presumption of conclusiveness does not imply a legislative doubt as to the scientific reliability of blood tests, but rather the purpose is to determine the legal father and to achieve certain social policies upholding the integrity of the family (Kusior v. Silver, supra, 54 Cal.2d 603, 619, 7 Cal.Rptr. 129, 354 P.2d 657).

There are no relevant distinctions between sickle cell anemia blood tests and blood typing tests. The sickle cell test may be a viable means of proving David is not Hall's biological father, but it does not provide a reasonable means of proving Cornelious was Hall's father. As a result, the test may not be used to controvert the conclusive presumption (see In re Marriage of B., 124 Cal.App.3d 524, 177 Cal.Rptr. 429, refusing evidence of tissue-typing test to demonstrate nonpaternity).

Hall also claims Evidence Code section 621, subdivision (a), violates due process because the state has no legitimate interest in precluding her from proving Cornelious was her father. She cites In re Lisa R., 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, which held a conclusive presumption similar to the one here (Evid.Code, s 661) violated due process. Hall points to the state interests underlying the presumption articulated in Brown : child welfare, protecting the child from the stigma of illegitimacy, and upholding the integrity of the family (County of San Diego v. Brown, supra, 80 Cal.App.3d 297, 303, 145 Cal.Rptr. 483). She contends these state interests are not involved here because: (1) she is an emancipated, married adult; (2) the family unit cannot be impugned because of the death of David Fuller after trial; and (3) the state's interest in protecting the child from the stigma of illegitimacy does not of itself warrant exercise of the presumption.

In Lisa R., supra, 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, the mother and her husband, the presumed father, were dead. Lisa was five years old and a dependent of the juvenile court. The issue was whether the juvenile court had jurisdiction to determine another man was Lisa's father and whether this other man had standing to assert his paternity. Lisa's mother was not cohabiting with her husband at the time of conception and thus the rebuttable presumption of former Evidence Code section 661 (now Civ.Code, s 7004, subd. (a)(1)), rather than the conclusive presumption here, was involved. The presumption was conclusive in effect, however, against the putative father because section 661 did not include him among the persons entitled to rebut the presumption.

The court in Lisa R. found there were no competing private interests against the putative father's claims, since both the mother and the presumed father were dead. The mother had been separated from her husband and the putative father had actually lived with the mother and contributed to the child's support both before and after the birth. The mother used the putative father's name during this period and the putative father's name appears on Lisa's birth certificate. The putative father was deprived of Lisa's custody only when the child's mother returned to her husband. When the putative father found out Lisa was a ward of the court, he consistently sought to assert his rights as her father. After reviewing the “private interests” of the father seeking to assume the rights and duties of fatherhood, and the countervailing interests of the state, the Supreme Court held due process required an opportunity be given to the father to rebut the presumption (In re Lisa R., supra, 13 Cal.3d 636, 651, 119 Cal.Rptr. 475, 532 P.2d 123). The court stressed the private interests of the putative father arose from more than the mere biological fact he was Lisa's natural father (id. at p. 649, 119 Cal.Rptr. 475, 532 P.2d 123).

In contrast, Vincent B. v. Joan R., 126 Cal.App.3d 619, 179 Cal.Rptr. 9, involved a man seeking visitation rights as a child's biological father. The man had a long-standing affair with the child's mother and had visited the child regularly for seven years. He took the child out on Saturday afternoons and on occasion the child spent the night at his house. The court applied the conclusive presumption of Evidence Code section 621. It presumed the mother's ex-husband was the child's father and denied the man visitation rights. The court found as a competing private interest the fact that the presumed father, although no longer living with the family due to the divorce, had supported and raised the child in the past (id. at p. 626, 179 Cal.Rptr. 9). In addition, the putative father had never exercised actual or legal custody over the child, and thus never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child (id. at p. 626, 179 Cal.Rptr. 9, citing Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511).

The facts are unique here because Hall claims her own illegitimacy. There is no argument as to the applicability of the conclusive presumption of Evidence Code section 621 to this situation. Hall contends she should have an opportunity to rebut the presumption. She argues there are no state or competing private interests here because she is emancipated and the presumed father (David) has died.

The constitutionality of the presumption must be decided on the particular facts of the case at bar (In re Lisa R., supra, 13 Cal.3d 636, at p. 651, fn. 17, 119 Cal.Rptr. 475, 532 P.2d 123). The facts here show Hall's interest is not as great, nor entitled to as much constitutional consideration, as the interests of the putative father in Lisa R. The premise of the holding in Lisa R. was the putative father's right to raise his own children (In re Lisa R., supra, at p. 648, 119 Cal.Rptr. 475, 532 P.2d 123, citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551). That premise is missing here due to Cornelious' death and Hall's emancipation.

In addition, there are other interests which support the presumption of Evidence Code section 621, including the stability of titles to property and rights of inheritance and the sanctity of the family (County of San Diego v. Brown, supra, 80 Cal.App.3d 297, 306, 145 Cal.Rptr. 483), and the speed and efficiency of judicial inquiry (In re Lisa R., supra, 13 Cal.3d 636, 650, 119 Cal.Rptr. 475, 532 P.2d 123). The facts here show the familial relationship Hall had with David Fuller was much more palpable than the biological relationship she had with Cornelious. Hall was raised and supported by David. Her birth certificate names David as her father. David and Arzina Fuller were married over 48 years without separation. David was never told he was not Hall's father, nor was he told of this proceeding for fear of ruining the marriage.2 Hall was aware of Cornelious' status for 12 years (9 years during which she was of majority). Now, after 27 years as the daughter of David Fuller, Hall claims the paternity of another man. Cornelious never shouldered any of the responsibility of fatherhood, nor did he make any legal efforts to assert his paternity.

Hall has failed to demonstrate any compelling private interests favoring her rebuttal of the presumption, save her desire to inherit the Cornelious estate. Under the facts here, Cornelious could not have claimed paternity (Vincent B. v. Joan R.) and David Fuller could not have denied paternity (Brown, supra, 80 Cal.App.3d 297, 145 Cal.Rptr. 483) in a court proceeding. In enacting the conclusive presumption, the Legislature must have intended only one man be adjudicated a child's father (Vincent B. v. Joan R., supra, 126 Cal.App.3d 619, 627, 179 Cal.Rptr. 9). It follows Hall should be conclusively presumed the daughter of the man conclusively presumed to be her father, David Fuller. The rights of daughterhood are no more constitutionally protected than the rights of fatherhood. The application of the conclusive presumption under the facts here does not deprive Hall of due process.

The order is affirmed.

I respectfully dissent.

The true question posed in this appeal is: Should an adult, emancipated person be barred by an artificial legal presumption from establishing her true parentage where neither her natural mother nor presumed father object; the state will not be called upon to bear any burden, financial or otherwise; the natural father has publicly acknowledged paternity;1 and where no persons' paramount legitimate interests will be affected? In the sterile factual context of the stipulated record with which we deal, I submit the answer is, no.

To achieve her ultimate goal, Trudy must establish she is the natural daughter of Cornelious. She is foreclosed from doing so unless she can first disprove she is not the natural daughter of Fuller, a feat the majority would legally bar her from accomplishing through the conclusive presumption in Evidence Code section 621, subdivision (a). We are not now concerned with whether Trudy can ever prove she is the daughter of Cornelious, she only asks to be allowed to disprove Fuller's paternity. If she is successful, she may well remain illegitimate. It is a risk she is willing to take and, at 27 years of age, one she is competent to assess and assume.2 Her mother concurs; Fuller is deceased and the only objectors are Cornelious' present next-of-kin whose adverse economic interests are obvious.

Although objectors point to a substantial state interest in upholding the conclusive presumption, there is none in the context of these facts. Those cited are illusory, not real:

1. Promotion of marriage and integrity of the family unit. Here the child is an adult and publicly proclaims her illegitimacy, a proclamation in which her mother joins. Fuller has died and with him whatever integrity the family unit still maintained after the inception of these proceedings. (Although Fuller was alive at the time of the hearing, his later death is a relevant fact.)

2. Promotion of “speed and efficiency of judicial inquiries in these circumstances.” Whatever this means, it certainly is not paramount to the promotion of justice. (In re Lisa R., 13 Cal.3d 636, 650, 651, 119 Cal.Rptr. 475, 532 P.2d 123.) Objectors do not tell us why judicial speed and efficiency should foreclose Trudy from establishing her illegitimacy as she chooses, nor why allowing her to do so would be inefficient or involve substantial time consumption on the stipulated facts.

3. Promotion of stability of titles to property and rights to inherit. Title to Cornelious' property and rights to inherit are precisely what is to be determined in the probate proceeding. These rights are personal and the state has no conceivable interest in foreclosing any person from proving he or she falls within the statutory classes entitled to inherit.3 Although the majority speaks of the relevance of County of San Diego v. Brown, supra, 80 Cal.App.3d 297, 145 Cal.Rptr. 483, in terms that blood tests are so unreliable they should not be used to negate a conclusive presumption of paternity because they do not “designate the specific individual as the biological father,” this reasoning is not applicable here. First of all, the legislature now permits blood tests to be conclusive evidence of nonpaternity, and as evidence to support a finding of paternity. (Evid.Code, s 895.) Secondly, the draft ignores the fact Trudy does not attempt to use any blood test to prove Cornelious is her natural father, only to prove Fuller is not, a task which the parties have stipulated she can do with absolute certainty of result.4

A conclusive presumption is a substantive rule of law and cannot be unconstitutional unless it transcends the power of the Legislature. (Kusior v. Silver, 54 Cal.2d 603, 619, 7 Cal.Rptr. 129, 354 P.2d 657.) The integrity of the family underlying the conclusive presumption is that expressed in Kusior, i.e., given a certain relationship (nonimpotent cohabitation) the husband of the mother of a child conceived in wedlock should be responsible for the care and welfare of that child.

In re Lisa R., supra, 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123, involved a minor ward of the court. Both her mother and the mother's husband (presumed father) were deceased. Although the child was born while her mother was married to the presumed father, it was at a time the two were not cohabitating. Therefore, Evidence Code section 621's conclusive presumption did not apply. However, the Evidence Code section 661 presumption was still applicable because the child was born during the marriage and, by virtue of that section, no one except the mother, husband or their issue was permitted to rebut this presumption. When the natural father attempted to do so, the statute was deemed conclusive as to him. The Supreme Court reversed, declaring the conclusiveness of the presumption denied the natural father due process in the absence of competing interests entitled to equal or greater weight. There, the paternal rights of the natural parent, who had lived with and contributed to the support of the child, was designated as her father on the birth certificate and always acknowledged her as his own, was deemed to outweigh the countervailing state interest. The court held that any potential adverse effect on Lisa's welfare by being taken from a foster home to which she had now become adjusted after an early traumatic life was not a state interest which could be used in this balancing. The state interest was narrower-that of preventing the natural parent from establishing paternity. The court held the policy of not impugning the family unit was no longer relevant because both the mother and the presumed father were dead. Compare here where the presumed father is dead, the mother publicly acknowledges her infidelity and the child has known and accepted the fact of her actual illegitimacy since she was 15 years old.5

Speed and efficiency were given short shrift against considerations of the Bill of Rights, and the Due Process Clause in particular, in Stanley v. Illinois, 405 U.S. 645, 656, 92 S.Ct. 1208, 1215, 31 L.Ed.2d 551.

Conclusiveness of the presumption will be justified in the normal situation where it is the presumed parent who seeks to avoid the burdens of legal parenthood. I recognize the need for a support relationship is more important to an older child than a biological one, while the only palpable relationship meaningful to a young child is biological. Therefore, a husband should be required to object to paternity early or be foreclosed from doing so. Thus, a husband should bear the burden of supporting wife's children if he does not object during the first two years after the child is born. (See In re Marriage of B., 124 Cal.App.3d 524, 530-531, 177 Cal.Rptr. 429; Recent Developments, California's Tangled Web: Blood Tests and the Conclusive Presumption of Legitimacy (1968) 20 Stan.L.Rev. 754, 761-765.) That is not this case. Here, Fuller reared and supported Trudy apparently believing she was his natural daughter, while his wife and (later) his daughter kept the truth from him. As morally reprehensible, or as considerate, as this may have been, it is irrelevant to the policy question we now face.

In spite of the majority's denigration of the extent of Trudy's interest in being allowed to rebut the conclusive presumption (no compelling interest) only some interest is required, and if some interest outweighs the state's interest in not allowing her to rebut it, the conclusive presumption should be no bar. (In re Lisa R., supra, 13 Cal.3d 636, 119 Cal.Rptr. 475, 532 P.2d 123.) Being legally recognized as the daughter of her natural father cannot be said to be an insubstantial interest on Trudy's part, regardless of society's view of her motivation. Even if Trudy has no other interest than to inherit Cornelius' (relatively minor) estate, this must be deemed to outweigh the state's interest in preventing her from doing so.

I would reverse.



1.  Evidence Code section 621, subdivision (a), says: “Except as provided in subdivision (b), the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.”

2.  David's death after trial has no effect on the outcome here. The sanctity of the family extends far beyond the father-daughter or husband-wife relationship. Moreover, David's death underscores the need for stability in the rights of inheritance.

1.  We do not suggest Cornelious' purported acknowledgment was sufficient to establish legitimacy. (Civ.Code, s 7004, formerly s 230.)

2.  An adult child's desires, alone, can sever the family ties. It may be adopted over its parents' objections by any person ten years its elder. (Civ.Code, ss 222, subd. (a) and 227p. subd. (a).)

3.  The dicta in County of San Diego v. Brown, 80 Cal.App.3d 297, 306, 145 Cal.Rptr. 483, suggesting these factors may support upholding the conclusive presumption against an attack by a presumed father who refuses to pay child support, is in a factual matrix 180 degrees from this one and involved a statute dissimilar to the one with which we now deal in that it recognized no exceptions. There, the court emphasized the unreliability of genetic testing as the state of the art then existed. The Legislature now acknowledges certain blood tests have conclusive reliability, the state of the art has changed, and the parties here concede the conclusive reliability of the blood test used here.

4.  The stipulation was only for the purpose of allowing the court to rule whether Evidence Code section 621, subdivision (a) absolutely barred Trudy from showing non-paternity. It will not insulate the test validity from challenge at trial.

5.  Why the surviving members of a family may not unanimously agree to familial self-destruction escapes me.

CAZARES, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

STANIFORTH, Acting P. J., concurs.

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