MAURICIO v. MARIBEL (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In early 2009, plaintiff and respondent Mauricio C. filed a petition to establish parental relationship, including a request for an order seeking genetic tests to establish paternity.   Mauricio alleged an intimate relationship with defendant and appellant Maribel A., a married woman.   Mauricio contended he was the biological and presumptive father of Sophia, born to Maribel in December 2007.   Following an evidentiary hearing, the trial court granted Mauricio's request for an order compelling genetic testing of Sophia, Maribel and Mauricio.   Maribel appeals the court's order for genetic testing, contending the conclusive presumption of Family Code section 7540 ¹ deprives Mauricio of standing to seek presumptive father status and to compel genetic testing and also mandates a finding that Maribel's legal husband is the father of Sophia We conclude the trial court exceeded its discretion in ordering the genetic testing and reverse.

FACTS

1. The petition and orders to show cause.

On February 10, 2009, Mauricio, acting in pro. per., filed a petition seeking to establish a parental relationship with the minor child, alleging he was her biological father.   He also filed a request for an order to show cause (OSC) seeking visitation and joint custody during the pendency of the petition.   Sophia was one year, three months old at the time, and since birth, she has lived with her mother, presumed father, by marriage to her mother, and three sisters.   Maribel, Sophia's mother, filed a response to the petition and OSC, denying Mauricio's claim of fatherhood and asserting that her legal husband, nonparty Reinero A., was Sophia's father.   In her responsive declaration, Maribel also attested that Mauricio was a liar and that Sophia is a member of a loving family.   The trial court denied Mauricio's original OSC.

On April 8, 2009, Mauricio filed his second request for an OSC, once again seeking visitation and joint custody and, for the first time, requesting testing to establish his paternity.   Maribel again responded by denying Mauricio's claim of paternity and contending her husband was Sophia's father.   Maribel stated in her responsive declaration that she has been married to her husband Reinero since April 5, 1990, and they have four daughters together, including their baby, Sophia.   She also attested to the accuracy of an attached copy of Sophia's birth certificate listing Reinero as the father and identifying several attached copies of family photographs.   Maribel's husband was not joined as a party to the action and did not submit a declaration.

2. The evidentiary hearing.

On July 14, 2009, the trial court held a hearing on the second OSC and received oral testimony from Mauricio and Maribel.   Mauricio testified that Maribel worked for his mother as a caretaker of his grandmother, who suffered from Alzheimer's disease.   Mauricio lived with his mother and grandmother in the same house and he and Maribel began a relationship.   He said Maribel initially did not tell him she was married, but he was aware she had other children.   In December 2006, Maribel confided to him she was pregnant.

Mauricio responded to the news by asserting his desire for them to be married, at which point Maribel finally disclosed she was already married.   He testified she told him she was in an abusive marriage.   Maribel miscarried that pregnancy.   Mauricio said he thought the best thing he could do was to simply let Maribel know he would “wait” for her and not put pressure on her.   Mauricio testified that Maribel became pregnant again shortly thereafter and that he expressed his excitement to her about raising the baby.   He said they agreed his name would go on the birth certificate when the baby was born.

On the day of Sophia's birth in December 2007, he was approximately two hours late for her delivery because of an important project at work, but he did go see Maribel and the baby immediately thereafter.   When he found out Maribel's husband's name was on the birth certificate, Maribel explained that Reinero had been in the room when the hospital asked about the names and Maribel therefore felt compelled to provide his name as the father.

Mauricio testified that for the first 14 months of Sophia's life, through February 2009, he held her out as his daughter and willingly paid for the necessities of her care.   He said he took care of Sophia as much as possible, including after work and on weekends.   Mauricio told his family, friends and several close co-workers that Sophia was his daughter.   Mauricio said he has never denied responsibility for the baby, he has tried to marry Maribel, and his family supports his relationship with Sophia.   His sister knitted a sweater for Sophia.   Her middle name is Fernanda, which he and Maribel agreed to because his brother's name is Fernando.   Mauricio also testified that Maribel repeatedly told him she loved him and wanted to live with him;  that her marriage to Reinero had been abusive;  that Reinero had beaten her at least twice, severely enough to contact the police;  that he had been arrested;  and that they had separated on prior occasions.

On cross-examination, Mauricio admitted that for the two months prior to Sophia's birth, he and Maribel did not see each other because she was acting “distraught,” and he was concerned about her health and the baby's health.   He said, however, that he bought Maribel a camera to take pictures so he could have pictures of that time during her pregnancy.   He denied Maribel only brought Sophia over to his home as part of her duties to take care of his grandmother because, by that time, his mother had already terminated her employment-as he explained, Maribel “voluntarily came back to us outside of her employment” after Sophia was born to continue their relationship.

Maribel testified that her husband Reinero had never been in jail, they have been married since 1990, they lived together continuously since that time, and they have four daughters together, including Sophia.   On cross-examination, Maribel stated that she did not know Mauricio's brother's name was Fernando and that she gave Sophia the middle name Fernanda because Maribel's nephew is named Fernando.   Sometime in early 2009, several months before the hearing, Maribel terminated Mauricio's contact with Sophia, which prompted Mauricio to file this action.

3. The order for genetic testing.

After taking the matter under submission, the court issued its order on July 22, 2009.   The court found that Mauricio had established standing as a presumptive father under section 7611, subdivision (d).²  Based on the pleadings and the testimony at the hearing, the court found Mauricio had received the minor child Sophia into his home and acknowledged her as his natural child within the meaning of the statute.   The court concluded that because Mauricio had stated a proper basis for presumed father status under section 7611, subdivision (d), and had sought genetic testing within the two-year time period prescribed by statute, he had standing to seek such tests under section 7541, and the conclusive presumption of section 7540, relied upon by Maribel, was not dispositive.   The court further reasoned that since Maribel's husband was not a party to the action and had not intervened to assert his rights as Sophia's father, any balancing under section 7612 was unnecessary but, even if undertaken, would therefore favor Mauricio.   The court did not explain why it concluded balancing favored Mauricio.   The court ordered that all tests be conducted in accordance with the statutory requirements, that all testing costs be paid by Mauricio, and that the test results be returned under seal to the court.   This appeal by Maribel followed.

DISCUSSION

1. Appealability of the trial court's order of July 22, 2009.

Maribel failed to adequately address the appealability of the court's interim order compelling genetic testing as required by California Rules of Court, rule 8.204(a)(2).   We requested letter briefing from the parties on the question of appealability, including whether or not the interim order was properly reviewed as an order granting a mandatory injunction.  (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127;  Gov.Code, § 68081.)   Maribel submitted a timely supplemental brief indicating her agreement that the order could be treated as a mandatory injunction, but citing no legal authority in support thereof.   Mauricio did not submit any supplemental brief.   We deem the court's order requiring the parties and the minor child to undergo genetic testing to be in the nature of a mandatory injunction requiring an affirmative act and therefore conclude we have jurisdiction to resolve this appeal.   (Code.Civ.Proc., § 904.1, subd. (a)(6);  see also Luitwieler v. Superior Court (1921) 54 Cal.App. 528, 530-531 and Luckett v. Panos (2008) 161 Cal.App.4th 77, 84 [an injunction may either command one to perform or refrain from performing a given act].)

2. Standard of review.

We review the court's order compelling the genetic testing for an abuse of discretion.  (County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253, 1257.)   Where, as here, “ ‘the preliminary injunction mandates an affirmative act that changes the status quo, we scrutinize it even more closely for abuse of discretion.’  “ (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.)

3. The statutory framework.

California's Uniform Parentage Act (UPA) (§ 7600 et seq.) includes provisions establishing “the framework by which California courts make paternity determinations.”  (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1114 (Kiana A.);  Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 856 (Gabriel P.);  Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1130.)   Various additional interrelated provisions of the Family Code may also be implicated in making such a determination, including the Uniform Act on Blood Tests to Determine Paternity. (§ 7550 et seq.)   We therefore briefly examine the statutory sections of the Family Code pertinent to this appeal.

The Family Code enumerates various presumptions that identify the factual circumstances under which a man may prove and be declared a child's father.   (Gabriel P., supra, 141 Cal.App.4th at p. 857.)  “The paternity presumptions are generated by society's interest in preserving the integrity of the family and legitimate concerns for the welfare of the child.   The state has an ‘ “ ‘interest in preserving and protecting the developed parent-child ․ relationships which give young children social and emotional strength and stability.’  “ ‘ [Citations.]”  (Lisa I. v. Superior Court (2005) 133 Cal.App.4th 605, 613 (Lisa I.).)

A conclusive presumption of paternity, sometimes also referred to as the “marital” presumption, is codified at section 7540.   The statute provides as follows:  “Except as provided in Section 7541, the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage.” (§ 7540, italics added.)   Notwithstanding its denomination as a “conclusive” presumption, there are two basic exceptions to its applicability.   First, courts have refused to apply the presumption “when its underlying policies are not furthered.  [Citations.]  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 (Leslie B.).)

Second, by its own terms, the conclusive “marital” presumption is not dispositive of paternity when the provisions of section 7541 are satisfied.   Section 7541 provides in relevant part:  “(a) Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. [¶] (b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth ․ for the purposes of establishing paternity by the presumed father․  As used in this subdivision, ‘presumed father’ has the meaning given in Sections 7611 and 7612.” (§ 7541, subds.(a) & (b), italics added.)   The statutory scheme thus expressly provides a mechanism whereby a man qualifying as a statutory presumed father may challenge the marital presumption of section 7540.

In addition to the conclusive presumption, the UPA sets forth several rebuttable presumptions of paternity at section 7611.   The rebuttable presumption relevant to this appeal is set forth in subdivision (d).  “A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:  [¶] ․ ¶] (d) He receives the child into his home and openly holds out the child as his natural child.” (§ 7611, italics added.)   Where there are two or more alleged fathers, section 7612 requires the court to balance the respective claims based on the particular facts of the case and the policy rationales underlying the paternity presumptions to make a determination as to which claimant shall be deemed the presumed father on the merits.   (Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1219-1220 (Brian C.).)

The relevant language of section 7612 is as follows:  “[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 7610 or 7611 that conflict with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” (§ 7612, subds. (a) & (b), italics added.)   In weighing the competing public and private interests served by the paternity presumptions (In re Lisa R. (1975) 13 Cal.3d 636, 649-640), the court must look to the specific facts of the case, and biological paternity is but one factor to consider.  (Kiana A., supra, 93 Cal.App.4th at pp. 1118-1119;  Gabriel P., supra, 141 Cal.App.4th at p. 864.)

As for standing, the persons who may bring a paternity action are set forth in sections 7630 and 7631.   Subdivision (b) of section 7630, the section relevant here, provides:  “Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611.”   If genetic tests are ordered in a paternity action, they must be conducted in accordance with the Uniform Act on Blood Tests to Determine Paternity. (§ 7550 et seq.)   Finally, in any paternity action, the natural mother, each man presumed to be the father under section 7611, and each man alleged to be the natural father may be joined as parties to the action, but shall, at a minimum, be given notice of the action in accordance with section 7666 and an opportunity to be heard before the petition is resolved on the merits. (§ 7635.)   With this statutory framework in mind, we now turn to Maribel's contentions.

4. The trial court exceeded its discretion in granting Mauricio's request for genetic testing.

The marital presumption embodied in section 7540 applies to this action.   Maribel was legally married and cohabitating with her husband Reinero at the time of Sophia's conception.   There is no evidence Reinero was sterile or impotent.   Maribel, as the natural mother and defendant in this paternity action, was entitled to raise the conclusive presumption as a defense, whether or not Reinero chose to intervene to assert in court his paternity of his fourth daughter born in marriage.  (Gabriel P., supra, 141 Cal.App.4th at p. 864 [natural mother may assert paternity presumptions].)

As noted above, the plain language of the UPA presupposes circumstances where a natural mother or married couple may be justified in raising the conclusive presumption, but that another man may still timely seek to establish his status as a presumed father under section 7611 and request blood tests pursuant to section 7541 to rebut the marital presumption. (§ 7541, subd. (a).)  This is true where there is an existing relationship between the putative father and the child.  (Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 43 (Craig L.);  Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239-240 (Rodney F.);  Lisa I., supra, 133 Cal.App.4th at pp. 619-620.)   Where there is compelling evidence of competing claims to paternity (including claims involving married couples), the court must then engage in the balancing test set forth in section 7612, subdivision (b).  (Brian C., supra, 77 Cal.App.4th at pp. 1219-1220.)

Rodney F. is not to the contrary.   There, a married woman had an extramarital affair and became pregnant around the same time she ended the affair.  (Rodney F., supra, 61 Cal.App.4th at p. 236.)   The evidence established the wife continued to cohabitate with her husband, and no evidence was presented that he was impotent or sterile.  (Id. at pp. 236-237.)   More importantly, the evidence established the man with whom the wife had had an affair had no relationship or contact with the child, only an alleged biological link.  (Id. at p. 236.)   The trial court nevertheless granted the alleged biological father's request for genetic tests, but ultimately held the conclusive presumption of section 7540 warranted a finding the husband was the father of the child and denied the alleged biological father's petition to establish paternity.

The appellate court affirmed but, in so doing, explained the trial court had erred in ordering the genetic testing, because the alleged biological father had failed to establish he was a presumed father within the meaning of sections 7611 and 7612 and therefore did not have standing to request genetic testing under section 7541.  (Rodney F., supra, 61 Cal.App.4th at p. 239.)   In also rejecting the biological father's related constitutional challenge to the paternity statutes, the appellate court elaborated on this point, stating, “There is ․ an obvious distinction between a biological father who has actually established a parent and child relationship, and a man who has not established such a relationship but would like to do so.   Only the former are presumed fathers under section 7611, subdivision (d).  A biological father who has not actually formed a parental relationship with the child does not have sufficient interest to overcome that of the state where the conclusive presumption of paternity applies.”  (Id. at pp. 239-240, italics added.)   Similarly here, as explained in part b, post, at page 13, the record does not support the trial court's determination that Mauricio had established a sufficient basis for his claim to presumed father status pursuant to section 7611, subdivision (d).  Therefore, genetic testing should not have been ordered.

a. Mauricio's “presumed father” status.

In order to establish his presumed father status, Mauricio was required to show that he received Sophia into his home and openly held her out as his natural child. (§ 7611, subd. (d).)  Mauricio testified, with little or no elaboration, that he regularly had Sophia in his home for the first 14 months of her life until Maribel unilaterally terminated their contact.   Maribel did not materially cross-examine Mauricio on his testimony, but did attempt to elicit testimony from Mauricio that Sophia's visitations were merely the result of Maribel bringing her baby with her to work.   The oral testimony of both Mauricio and Maribel at the hearing was extremely brief.   Mauricio presented no evidence that Sophia ever stayed overnight in his home, resided in his home for any period of time, was otherwise in his care unaccompanied by her mother, or that he spent time with Sophia actually performing any role akin to a parental caregiver.   More to the point, there was no substantial evidence to contradict Maribel's testimony that throughout her life, Sophia had been acknowledged to be a member of the family unit of which Maribel was the mother, Reinero was the father, and Sophia was the baby who lived with her parents and three sisters.

The limited record below provides no substantial evidence or reasonable inference that the visits by Sophia in Mauricio's home established that he was a presumed father.   There is no evidence of how long each visit lasted, how often they occurred over the 14 months of Sophia's infant life, if Mauricio was ever solely responsible for Sophia's care, or any other similar information.   There is no evidence of the type held sufficient in Brian C., supra, 77 Cal.App.4th 1198.   The unwed father there showed through testimony, photographs, and letters written by the mother (who was married to another man) that he had lived with the mother and the child as a family for the first year of the child's life, was identified on the birth certificate and the baptismal records as the father, and had “doted” on the child that first year, “feeding, holding, bathing, rocking, walking, and soothing her, and ‘tending to her every need.’  “ (Id. at p. 1201.)   On such facts, the appellate court held the unwed putative father had established standing to challenge the conclusive marital presumption based on his status as a presumed father under section 7611, subdivision (d), and reversed the trial court's summary judgment ruling in favor of the mother.  (Brian C., supra, at pp. 1219-1221.)

Similarly, in Craig L., a married woman had a brief extramarital affair with a married man.   She was cohabitating with her husband at the time she conceived, and the marriage remained intact, despite the affair.  (Craig L., supra, 125 Cal.App.4th at p. 44.)   It was admitted by all parties that the man with whom the natural mother had had an affair was the biological father of the child.  (Ibid.) He and his wife agreed to assist in the upbringing of the child, and the natural mother and her husband expressly permitted them to do so for a period of time.   In fact, for the first year of the child's life, the natural mother and her husband allowed the biological father and his wife to regularly visit with the child in their own home, provide childcare services three to four days per week, and allowed a once-per-week “overnight stay” with the child.  (Ibid.) Shortly after the child turned one year old, however, the natural mother terminated any further contact by the biological father, claiming she no longer needed his and his wife's “childcare services.”   (Ibid.) Even though the child never lived with the biological father full time, the child's regular and significant visitation in the home of the biological father, including overnight stays, during the first year of his life was deemed “receive[d]” within the meaning of section 7611, subdivision (d).

Here, there is no substantial evidence that Mauricio ever received Sophia into his home within the meaning of section 7611, subdivision (d).  The evidence established only that, for unspecified periods of time, Maribel visited Mauricio's home, with Sophia in tow.   Such contact with the child is not akin to regularly and deliberately undertaking the role of parental caregiver.   Further, the court erred in finding that balancing under section 7612 was unnecessary because Reinero was not a party and had not asserted a competing claim of paternity on his own behalf.  “[U]nder a plain reading of section 7541, subdivision (b), an unwed biological father may obtain blood tests but only if he meets the requirements of sections 7611 and 7612.”  (Craig L., supra, 125 Cal.App.4th at p. 49, italics added;  accord, Kiana A., supra, 93 Cal.App.4th at p. 1114.)   A putative father seeking genetic testing must qualify as a presumed father under section 7611 and under the balancing of section 7612.   To hold otherwise would be to render the reference to section 7612 in section 7541, subdivision (b), meaningless.   As such, the trial court's failure to engage in meaningful balancing under section 7612 prior to ordering the tests was error-an error that was not remedied by the court's conclusory statement that if, hypothetically, balancing were performed, it would favor Mauricio.

We conclude the court failed to act in accordance with the statutory requirements and therefore abused its discretion.  “There is an abuse of discretion when the trial court's action ‘transgresses the confines of the applicable principles of law.’  “ (Gabriel P., supra, 141 Cal.App.4th at p. 862, quoting Continental Ins. Co. v. Superior Court (1995) 32 Cal.App.4th 94, 108.)

b. Mauricio's statutory standing.

Section 7630, subdivision (b) provides that presumed fathers under section 7611, subdivision (d) may bring an action to establish their paternity.   (Brian C., supra, 77 Cal.App.4th at p. 1221;  Lisa I., supra, 133 Cal.App.4th at p. 612.)   In connection with bringing such an action, a putative father may also request genetic testing to attempt to establish his presumed father status so long as the action is filed and the request for genetic testing is made within two years of the minor's birth. (§ 7541, subd. (b).)  Mauricio had standing under section 7630, subdivision (b), to bring a paternity action to attempt to establish his presumed father status under section 7611, subdivision (d).

However, because Mauricio failed to present legally sufficient evidence of his status as a presumed father under section 7611, subdivision (d), and because the court failed to engage in balancing under section 7612, Mauricio did not satisfy the statutory requirements for standing to obtain genetic testing under section 7541.  (Craig L., supra, 125 Cal.App.4th at p. 49;  accord, Kiana A., supra, 93 Cal.App.4th at p. 1114.)   Accordingly, the court's interim July 22, 2009 order directing Mauricio, Maribel and Sophia to submit to genetic tests exceeded the bounds of discretion.

DISPOSITION

The court's order of July 22, 2009 is reversed.   Maribel is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I CONCUR:

RUBIN, Acting P.J. - Dissenting

The majority correctly points out that this case falls short of the fact pattern typically presented by a man who claims he is a presumed father because he has received “the child into his home and openly holds out the child as his natural child.”  (Fam.Code, § 7611, subd. (d).)  But, of course, it is the unusual case, in which we pose our greatest trust in trial judges to make the difficult calls.   Here, it is true there was no evidence that Sophia spent any appreciable time with Mauricio on overnight visits or on outings alone with him.   Nevertheless, Mauricio clearly accepted her in his home.   The evidence was uncontradicted that Sophia was brought to Mauricio's home by her mother who worked in that home, and that Mauricio spent countless hours almost daily with Sophia.   Indeed, one could describe this case in either of two ways:  Mauricio received Sophia in his home - true - and it also happened that Sophia's mother worked there as well.   Or, Sophia's mother regularly brought Sophia to work -true - and it just happened that Mauricio was around as well.

In 2010 our family dynamics are often messy, and lines are not as clearly established as they might have been in small town U.S.A. in the 1950s.   Mauricio testified to the significant time he spent with Sophia in his own home, with his relatives, proclaiming Sophia to be his daughter.   This was an arrangement that was apparently comfortable to all involved and allowed Mauricio to help raise his daughter.   Mauricio reasonably understood that to push for more might have produced discord.

In my view, the trial court was in the best position to determine whether under these unique facts, Mauricio satisfied the Family Law requirements.   I would affirm the court's ruling.

FOOTNOTES

FN1. All further statutory references are to the Family Code unless otherwise indicated..  FN1. All further statutory references are to the Family Code unless otherwise indicated.

FN2. The court found Mauricio's evidence insufficient as to his two alternative grounds for presumed father status, based on attempted marriage to Maribel, under section 7611, subdivisions (b) and (c)..  FN2. The court found Mauricio's evidence insufficient as to his two alternative grounds for presumed father status, based on attempted marriage to Maribel, under section 7611, subdivisions (b) and (c).

FLIER, J. RUBIN, Acting P. J.