IN RE: LISA R. (1974)

Victor R., the appellant, appeared in the juvenile court's 1973 annual dependency review involving Lisa R. and sought to establish that he was Lisa's father. The court rejected his offer of proof, held that Evidence Code section 661 precluded him from claiming paternity, refused to terminate Lisa's status as a dependent child and continued her placement in a foster home. Victor appeals.

Evidence Code section 661 is one of two California statutes establishing presumptions of legitimacy of a child born to a married woman. Lisa was born in August 1966. At that time Patricia M., her mother, was married to Donald M. In May 1969 Patricia M., Lisa and an older child, were found in their gas-filled house. Patricia M. was in a drunken condition. Patricia pleaded guilty to a child neglect charge. The county probation office filed a petition to make the children dependents of the juvenile court, declaring that Patricia was an alcoholic and endangered her children's safety. The report declared: ‘Mrs. [M.] relates that Lisa was conceived during a casual relationship with Victor [R.] during the time that she and Donald [M.] were separated.’ The report stated that Victor's address was unknown.

The 1969 judgment of dependency was not included in the clerk's transcript but we have augmented the record to include it. It found that Lisa had no parent exercising custody and control and recited: ‘That the welfare of the minor requires her custody be taken from her parent.’ In June 1970 the first annual dependency review resulted in a referee's order continuing dependency. The order declared that location of Victor R., the minor's father, was unknown. The 1971 annual review was accompanied by a report declaring that Donald M., husband of Patricia, had died of a drug overdose and that Patricia was both an alcoholic and a drug user. It gave a Sacramento address for Victor R. but declared that Lisa was being supported by AFDC funds. The report recited that Lisa had been placed with foster parents. The referee's order continuing dependency again referred to Victor R. as a parent of Lisa.

The 1972 review proceeding had approximately the same characteristics as those of the preceding years. Notice of the 1973 annual review was given to Victor R. as ‘putative father.’ By this time Patricia M. had died. The probation officer's report noted that Victor R. wished to have custody of Lisa and described facets of Victor's history gravitating against this wish. At the hearing Victor appeared with counsel. He asked that the court grant him visitation rights. At the court's suggestion his attorney made an offer of proof in lieu of calling witnesses.

According to his offer of proof, Victor commenced living with Patricia in September 1965 while she was separated from Donald, her husband. Patricia soon became pregnant. Lisa was born in August 1966. Victor and Patricia lived together until four or five months after Lisa's birth, when Patricia decided to return to Donald, her husband. Patricia had used his, Victor's, name on the birth certificate and gave his name to Lisa. Victor did not know Lisa's whereabouts until the middle of 1970. The offer of proof also recited that when Donald M. signed a relinquishment for adoption, Donald had insisted on adding to the document the statement: ‘This in no way admits that I am the father of this child.’

By stipulation, a copy of Lisa's birth certificate, naming Victor R. as her father, was admitted in evidence.

The court rejected the offer of proof, ruling that it had no jurisdiction to decide the issue of paternity and that Victor had no standing to claim paternity.

Evidence Code section 621 establishes a conclusive presumption of legitimacy of the child of a married woman who is cohabiting with her husband.¹ Evidence Code section 661 establishes a rebuttable presumption of legitimacy but limits the parties who may dispute the presumption.² The conclusive presumption embodied in section 621 has been characterized as a rule of substantive law. (Jackson v. Jackson, 67 Cal.2d 245, 247, 60 Cal.Rptr. 649, 430 P.2d 289; Kusior v. Silver, 54 Cal.2d 603, 619, 7 Cal.Rptr. 129, 354 P.2d 657.) The conclusive presumption of section 621 is available only if the mother was cohabiting with her husband, that is, if they were ‘living together as husband and wife.’ (Kusior v. Silver, supra, 54 Cal.2d at p. 616, 7 Cal.Rptr. at p. 138, 354 P.2d at p. 668.)

A number of decisions hold the conclusive presumption inoperative where there is proof that the husband's paternity was physically impossible, i. e., ‘not possible by the laws of nature.’ (Jackson v. Jackson, supra, 67 Cal.2d at pp. 247–248, 60 Cal.Rptr. 649, 430 P.2d 289; Kusior v. Silver, supra, 54 Cal.2d at pp. 610–611, 7 Cal.Rptr. 129, 354 P.2d 657; Estate of Walker, 180 Cal. 478, 491, 181 P. 792, 797; Estate of McNamara, 181 Cal. 82, 96, 183 P. 552; Estate of Marshall, 120 Cal.App.2d 747, 753, 262 P.2d 42.) Nevertheless, even if the conclusive presumption is ousted, the prima facie presumption of section 661 applies in every case of a child born to a married woman. (Kusior v. Silver, supra, 54 Cal.2d at p. 616, 7 Cal.Rptr. 129, 354 P.2d 657; Estate of McNamara, supra, 181 Cal. at p. 97, 183 P. 552.) According to its terms, the latter may be disputed only by specified parties. Although it is called ‘rebuttable,’ as a practical matter the presumption of section 661 is conclusive upon parties other than those to whom it extends the right of dispute. (Kusior v. Silver, supra, 54 Cal.2d at pp. 618–619, 7 Cal.Rptr. 129, 354 P.2d 657.)

A survey of the case law discloses that in the cases where either of the presumptions of legitimacy were overcome, the assailant was one of the parties entitled by section 661 to dispute the rebuttable presumption. Other parties have uniformly been denied the capacity to claim extramarital parenthood. (Gonzales v. Pacific Greyhound Lines, 34 Cal.2d 749, 751–752, 214 P.2d 809; Estate of Lee, 200 Cal. 310, 314, 253 P. 145; In re Madalina, 174 Cal. 693, 695–696, 164 P. 348; Serway v. Galentine, 75 Cal.App.2d 86, 89, 170 P.2d 32.)

In Serway v. Galentine, supra, the alleged natural father was barred from claiming paternity of a child born to a married woman. The same bar must be applied here. To paraphrase Gonzales v. Pacific Greyhound Lines, supra, 34 Cal.2d at page 752, 214 P.2d 809, it was immaterial whether the presumption of Lisa's legitimacy was conclusive or disputable, for Victor R. could not be permitted to claim paternity. The juvenile court properly rejected his claim of paternity and his offer of proof.

Appellant argues that the presumption was ‘rebutted’ by parties able to do so under section 661. At this point he relies on Donald M.'s refusal to admit paternity and Patricia M.'s extrajudicial declarations as ‘rebuttal.’ According to this contention, a party precluded by section 661 from claiming paternity could nevertheless do so if he had available to him extrajudicial declarations emanating from the husband or wife, provided that such declarations were admissible under exceptions to the hearsay rule. To describe this contention is to reject it. Both sections 621 and 661 are rules of substantive law. They do not vary according to the source of evidence offered to resist the presumptions. A person other than one permitted to do so by the terms of section 661 is not permitted to present such evidence.

Appellant argues that the juvenile court has already ‘decided’ the paternity issue in Victor's favor. Apparently this argument is intended as a claim of res judicata, estoppel by judgment or collateral estoppel. A similar contention is that a 1973 judgment of the superior court denying a petition by the Sacramento County welfare department to free Lisa from parental custody and control, amounted to a binding adjudication of Victor's parental status.³

Appellant's claims of prior adjudication have no merit. A judgment in a prior action between the same parties or their privies operates as a conclusive adjudication of such issues as were actually litigated and determined in the first action, either expressly or by necessary implication. (See Code Civ.Proc., § 1911; Sutphin v. Speik, 15 Cal.2d 195, 202, 99 P.2d 652, 101 P.2d 497.) The sole issue before the juvenile court was whether Lisa had a parent or guardian exercising effective parental care and control; paternity was not in issue. (Welf. & Inst. Code, § 600, subd. (a); Gravert v. DeLuse, 6 Cal.App.3d 576, 582, 86 Cal.Rptr. 93.)

The only issue in the county's action to free Lisa from parental custody and control was that presented by the county's allegation that Lisa was an abandoned child within the meaning of Civil Code section 232, subdivision (a).⁴ Victor appeared as a witness and testified. The court found that Lisa had not been abandoned. In that action Evidence Code section 661 precluded the court from adjudicating Victor's claim of paternity. Nothing on the face of the papers shows that it attempted to do so.

Equally without merit is appellant's claim that the juvenile authorities are estoppel by their prior statements from denying Victor's claim of paternity. At this point appellant refers to various instances in the course of the juvenile court proceedings in which Victor was referred to as Lisa's parent. Estoppel does not lie to defeat positive law or public policy. (City of Long Beach v. Mansell, 3 Cal.3d 462, 91 Cal.Rptr. 23, 476 P.2d 423.) At the juvenile court's annual dependency reviews the best interest of the child was the paramount concern. (In re Francecisco, 16 Cal.App.3d 310, 314, 94 Cal.Rptr. 186.) This public policy concern could not be de feated by the prior, inconsistent, ex parte expressions of public officials. To cap the matter, appellant makes no showing that these prior inconsistent expressions misled him to his prejudice. Such a showing is indispensable to an estoppel. (Rheem Mfg. Co. v. United States, 57 Cal.2d 621, 626, 21 Cal.Rptr. 802, 371 P.2d 578.)

Finally, we turn to appellant's contention that section 661, as applied in this case, deprived him of due process of law. His thesis is that since the husband and wife are both dead, public wardship cannot outweigh his claims as natural parent.

Attacks have been made upon the current social desirability of the presumptions of illegitimacy. (See Keaton v. Keaton, 7 Cal.App.3d 214, 216, 86 Cal.Rptr. 562.) Nevertheless, Evidence Code sections 621 and 661 represent long-standing legislative expressions of California social policy. The State Supreme Court has expressed constitutional approval of this ‘overriding social policy.’ (Kusior v. Silver, supra, 54 Cal.2d at p. 619, 7 Cal.Rptr. 129, 354 P.2d 657.)

The state's paltry offer of synthetic wardship as against the claim of a natural parent demonstrates a weakness of the legislature's policy choice. There is soundness to the thesis that both these statutes, although physically separate, express an indivisible social policy. Historically, that policy gave protection against the obloquy of bastardy. Only vestigial barbarism stigmatizes illegitimacy; a civilized society does not view it as a sin or even a mild handicap. Deflated to size, the statutory policy should seek no more than any other presumption—to eliminate or limit the element of indeterminability. The necessity that the woman be ‘cohabiting with her husband’ (to use the terminology of section 621) pervades that policy and should pervade both statutes equally. So limited, both presumptions would give preference to marital parenthood when it is physically possible, reject that preference when it is not. So limited, these statutes would not force judges into fictitious judgments.

California decisional law is anomalous when a showing of noncohabitation may oust the conclusive presumption of legitimacy but not the rebuttable presumption. Nevertheless, such is the state of California law.⁵ State decisis binds us to decisional manifestations of constitutional approval and to decisions restricting proof of noncohabitation to the parties listed in section 661. The legislature should consider amendments to these statutes to give reality its day in court.

Appellant's lack of standing to claim paternity obviates the necessity of inquiring into the juvenile court's jurisdiction to act on that claim.

Order affirmed.

FOOTNOTES

1.  Evidence Code section 621 provides: ‘Notwithstanding any other provision of law, the issue of a wife cohabiting with her husband, who is not impotent, is conclusively presumed to be legitimate.’

2.  Evidence Code section 661 provides: ‘A child of a woman who is or has been married, born during the marriage or within 300 days after the dissolution thereof, is presumed to be a legitimate child of that marriage. This presumption may be disputed only by the people of the State of California in a criminal action brought under Section 270 of the Penal Code or by the husband or wife, or the descendant of one or both of them. In a civil action, this presumption may be rebutted only by clear and convincing proof.’

3.  The papers in the county's superior court action to free Lisa from parental custody and control are physically included in the clerk's transcript on appeal. These papers were not part of the record in the juvenile court proceeding from which this appeal is taken. Ordinarily matters not presented to the trial court are not a permissible part of the record on appeal and will not be considered by the reviewing court. (People v. St. Martin, 1 Cal.3d 524, 537–538, 83 Cal.Rptr. 166, 463 P.2d 390.) We are impelled to recognize this as an exceptional situation and shall take judicial notice of these papers in order to prevent prolongation of this litigation and to dispose of appellant's res judicata argument.

4.  The clerk's transcript contains an amended petition replacing the allegation of abandonment with an allegation that the minor was a neglected child within the meaning of (then) subdivision (b) of section 232. The court's minute order recites that the amended petition was not served prior to the hearing. The court made on finding on the score of the amended petition's allegation of child neglect.

5.  Thus, in Estate of McNamara, supra, 181 Cal. at page 97, 183 P. at page 558, the court states: ‘Our conclusion in the present case is that the issue of paternity is not determined by any conclusive presumption of legitimacy.‘It does not follow that the prima facie presumption of legitimacy is not applicable. That presumption applies in every case of a child born in wedlock and can be overcome only by clear and satisfactory evidence.’ See also, Jackson v. Jackson, supra, 67 Cal.2d at pp. 247–248, 60 Cal.Rptr. 649, 430 P.2d 289.

FRIEDMAN, Acting Presiding Justice.

REGAN and JANES, JJ., concur.