W.S. v. S.T. ( 2018 )

Filed 2/1/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
W.S., H042611
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 1-14-CP021742)
v.
S.T.,
Defendant and Respondent.
In 2014, appellant W.S. filed a petition to establish a parental relationship with his
daughter (daughter). W.S. alleged he was daughter’s biological father. He claimed he
had a relationship with S.T., daughter’s mother, while she was married to her husband,
Martin T. W.S. requested joint legal and physical custody, equal time visitation, and
mediation to work out a parenting plan. He also requested daughter’s last name be
changed. The trial court denied W.S.’s requests, finding he was not a presumed parent
within the meaning of Family Code section 7611, subdivision (d).1
On appeal, W.S. argues the trial court applied an incorrect legal standard when it
found he was not a presumed parent under section 7611, subdivision (d). Furthermore,
he claims the court failed to exercise its discretion to order him visitation as an interested
party. He also argues California’s statutory scheme is unconstitutional, violating the
principles of due process and equal protection. Lastly, he claims the trial court’s decision
on the matter may have been the result of bias. For the reasons set forth below, we
affirm.
1
Unspecified statutory references are to the Family Code.
BACKGROUND
1. Statement of Facts
a. Daughter’s Birth
In 2002, S.T. married Martin and had their son Frank. In 2006, S.T. and Martin
separated for approximately 18 months. During their separation, they did not live
together. S.T. filed for divorce from Martin in 2006. She met W.S. sometime in 2007 or
2008 while working at a car dealership. The two began a relationship. At the time, W.S.
believed S.T. was divorced and lived with her mother.
In 2008, S.T. became pregnant with daughter. By that time, S.T. said she had
reconciled with Martin and was living with him. She told W.S. he was not daughter’s
father, and W.S. did not press her for details. During S.T.’s pregnancy, Martin attended
prenatal classes with her. He drove her to the hospital when she was in labor and took
several weeks off work so he could help afterwards. Martin was in the room during
daughter’s birth and cut her umbilical cord. His name was put on daughter’s birth
certificate. According to Martin, S.T. breastfed daughter when she was a baby, and
daughter would wake up every two hours. Martin helped S.T. take care of daughter. He
changed daughter’s diaper, washed her laundry, and rocked her to sleep. When daughter
started drinking formula, Martin would prepare bottles for her. Daughter slept with S.T.
and Martin in their bed until she was approximately four and a half years old.
Shortly after daughter’s birth, S.T. suspected W.S. was daughter’s father based on
her features. Her suspicions were confirmed by a DNA test.2 Martin remained unaware
that daughter was not his biological daughter.
2
W.S. and S.T. used a DNA testing kit purchased at a drugstore. The blood DNA
test was not court-ordered.
2
S.T. believed W.S. first saw daughter several weeks after she was born. The visit
was brief, lasting only several minutes. W.S. lived with his mother at the time, and he
did not initially tell his mother that daughter was his daughter.
b. W.S.’s Account of His Relationship with Daughter
W.S., S.T., and Martin provided conflicting accounts of W.S.’s relationship with
daughter. Between 2009 and 2010, W.S. said he saw daughter almost every day, and she
spent the night at his apartment approximately once or twice a week. Daughter would
often stay overnight by herself, because S.T. had to be at home to take care of Frank.
W.S. believed S.T. and daughter lived with S.T.’s mother.
Daughter did not have her own room at W.S.’s apartment, which he shared with
his mother. W.S. said his apartment was full of daughter’s toys and artwork. He had
purchased a crib for daughter, but she did not use it. Daughter slept in W.S.’s bed if she
spent the night. W.S. made bottles for her if she woke up by putting a scoop of formula
in a bottle with warm water. Daughter started eating solid foods between six and nine
months. W.S. said S.T. would cut up cooked pieces of vegetables, like broccoli, to feed
to daughter.
According to W.S., S.T. began limiting the amount of time daughter spent at his
apartment as she got older and began attending daycare.3 W.S. did not participate in
activities at daycare, because S.T.’s mother knew people at the school. W.S. did not want
to cause embarrassment for S.T., daughter, or Frank if people at the daycare found out
that Martin was not daughter’s father. Daughter did not spend the night at his apartment
as often after she started daycare.
In 2013, daughter began attending preschool. She was enrolled using W.S.’s last
name. W.S. paid for daughter’s tuition for approximately a year, and he frequently
3
W.S.’s friend testified at the hearing that he saw daughter at W.S.’s home only
five or six times.
3
picked her up at the preschool. Daughter’s teacher at preschool confirmed that W.S. and
S.T. often picked daughter up at school together. Daughter would run to W.S. when he
came to get her. W.S. participated in school activities and parent-teacher conferences.
The teacher recalled that daughter called W.S. “Pa” or “Daddy.” Daughter’s teacher
believed W.S. and S.T. were a couple in a “[n]ormal relationship.” She could not recall
seeing Martin at the school.
W.S. held birthday parties for daughter when she turned three, four, and five.
W.S. and S.T. took daughter on trips, including a trip to Six Flags for her birthday.
Daughter made drawings for W.S., including a drawing with a heart and the word “Pa.”
W.S. said the photo symbolized “Pa’s heart.” W.S. posted daughter’s artwork around his
apartment. He celebrated Valentine’s Day, Christmas, Thanksgiving, and Halloween
with daughter. W.S. had many nicknames for daughter.
W.S. did not know the name of daughter’s dentist or doctor. He had never
attended daughter’s medical appointments, and daughter was not on his health insurance.
However, he did pay for S.T.’s cell phone bill. He also occasionally gave S.T. money.
c. S.T.’s Account of W.S.’s Relationship with Daughter
According to S.T., W.S. exaggerated the closeness of his relationship with
daughter. S.T. brought daughter to visit W.S. approximately once or twice a week during
her first year.4 However, she described daughter’s typical visits with W.S. as brief. S.T.
allowed daughter to stay overnight at W.S.’s home only once when she was an infant.
S.T. found being separated from daughter too painful to allow more overnight visits.
S.T. refuted W.S.’s claims about daughter’s feeding. S.T. said daughter was
breastfed for the first few months. S.T. insisted she would not have permitted daughter to
drink bottles made with warm water that was not boiled first, as described by W.S.
4
A friend who coordinated pickups with S.T. confirmed that she picked daughter
up at W.S.’s home once or twice a week.
4
She also explained that daughter started eating solid foods between one and two years of
age, not between six and nine months. Daughter began eating purees, not diced
vegetables.
When daughter started daycare, S.T. would occasionally take her to visit W.S.
The visits were short, lasting maybe one or two hours. Daughter spent weekends at home
with S.T., Martin, and Frank. When daughter was enrolled at preschool, S.T. allowed
W.S. to pay for half of daughter’s tuition. S.T. deposited money into W.S.’s bank
account to pay for the other half of the tuition. She acknowledged that W.S. frequently
went with her to pick up and drop off daughter at the school. Occasionally, daughter
went to W.S.’s apartment to play after preschool ended.
S.T. could only remember daughter staying overnight at W.S.’s apartment a total
of three or four times. W.S., however, had text messages that seemed to indicate
daughter stayed overnight with him at least 10 or more times. When questioned about the
messages, S.T. said she could not recall sending the messages and could not remember
daughter spending the night so frequently. S.T. described her relationship with W.S. as
“verbally abusive.” She also claimed she was often present when daughter visited W.S.
W.S. would hide daughter’s toys when she was not there, because not all of his relatives
knew daughter was his daughter.
On daughter’s birthdays, S.T. would take daughter to W.S.’s house in the morning.
She also brought daughter to W.S.’s house if he had presents for her on Christmas. On
Halloween, she would bring daughter over for trick or treating. S.T. acknowledged she
had gone on trips with daughter, W.S., and W.S.’s mother. They had visited the Jelly
Belly factory for daughter’s second birthday. S.T., W.S., and daughter had also gone to
Six Flags for daughter’s fourth birthday.
5
d. Martin’s Relationship with Daughter
Martin could only recall a few occasions where daughter was not home at night.
He did not believe daughter could have spent so many nights at W.S.’s apartment,
because he would have noticed she was not at home. Martin described that as daughter
got older, he continued to be very involved in her life. He cleaned up for her, cooked for
her, and used to pick her up at daycare. When it was time for daughter to sleep, Martin
would put her to bed by either reading to her or putting on a movie.
Martin could not recall the name of daughter’s preschool. He did not pick her up
or drop her off at preschool and did not participate in any of the school activities. He
believed S.T. was the one paying for the preschool.
Daughter was on Martin’s health insurance. Martin scheduled daughter’s dentist
appointments and knew the name of daughter’s doctor. Martin did not attend her
appointments.
e. End of W.S. and S.T.’s Relationship
S.T. described her relationship with W.S. as tumultuous. She said they “ended”
their relationship numerous times throughout the years. In July 2014, S.T. told Martin
about her relationship with W.S. Martin was upset and initiated divorce proceedings.
However, by the time W.S. filed his petition to establish a parental relationship, Martin
and S.T. were in the process of reconciling. Martin and S.T. said they were working on
their marriage and were not proceeding further with the divorce.
2. Petition to Establish Parental Relationship
On August 22, 2014, W.S. filed a petition to establish a parental relationship with
daughter. W.S. alleged he was daughter’s biological father and requested joint legal and
physical custody and equal visitation. W.S. also requested daughter’s last name be
changed.
6
On August 25, 2014, S.T. filed a response asserting that daughter was not W.S.’s
daughter. S.T. declared that she had a relationship with W.S. before she became pregnant
with daughter. Daughter, however, was born during her marriage to Martin while they
were living together. Thus, Martin was daughter’s father. On August 26, 2014, Martin
moved for joinder. Martin argued that he was a necessary party to the action, since there
was a conclusive presumption he was daughter’s father under section 7540.
Before the hearing, all parties submitted briefs, arguments, and evidence for the
trial court to consider. W.S. argued the presumption of paternity under section 7540
should not apply to Martin, because S.T. had filed for divorce from Martin in 2006.
Thus, he claimed that S.T. and Martin were not cohabitating at the time daughter was
conceived. W.S., however, conceded that even if Martin was not a conclusive father
under section 7540, he met the requirements of a presumed father under section 7611.
W.S. argued he also met the requirements of a presumed father under section 7611. He
then argued his presumption of fatherhood should prevail over Martin’s presumption
under section 7612, subdivision (b), which provides that when two competing
presumptions for paternity exists the presumption upon “which on the facts is founded on
the weightier considerations of policy and logic controls.”
S.T. filed a declaration asserting that she was cohabitating with Martin at the time
daughter was conceived. She also filed a brief claiming the marital presumption of
paternity under section 7540 has precedence over the presumption set forth under
section 7611.
3. The Hearing and Trial
On October 21, 2014, the trial court held a hearing and found there was a
conclusive presumption that Martin was daughter’s father, because he was married to and
cohabitating with S.T. when daughter was conceived pursuant to section 7540.
Thereafter, it found Martin was a necessary party to the action and granted his motion for
7
joinder. Subsequently, the trial court continued the hearing, focusing on whether W.S.
was presumptively daughter’s father under section 7611.5
The court heard testimony from W.S., S.T., Martin, and several family members
and friends. After hearing argument from the parties, the court took the matter under
submission. On March 19, 2015, the trial court issued a written statement of decision
denying W.S.’s request for visitation and joint legal and physical custody of daughter.
The trial court concluded W.S. had not received daughter into his home, because he had
not satisfied the standard of “ ‘regular visitation,’ ” which included “assumption of
parent-type obligations and duties . . . .” Thus, he could not qualify as a presumed parent
within the meaning of section 7611, subdivision (d).
DISCUSSION
On appeal, W.S. argues the trial court erred when it denied his request to establish
a parental relationship. He argues (1) the trial court applied an incorrect legal standard to
determine if he received daughter into his home under section 7611, subdivision (d),
(2) the trial court erred when it failed to grant him visitation with daughter, (3) the trial
court’s decision erroneously considered the timeliness of his petition when there is no
statute of limitations to bring an action to establish a parental relationship,
(4) California’s statutory scheme is unconstitutional, because it deprives him of due
process and explicitly prefers mothers over fathers and requires fathers to take affirmative
steps before recognizing their equal right to custody, and (5) a reasonable person may
entertain doubts as to whether the trial court’s decision on his petition was the result of
bias. For the reasons set forth below, we affirm.
5
The first day of the trial was held on October 21, 2014. The trial continued on to
December 9 and 15, 2014.
8
1. Receipt into the Home
On appeal, W.S. argues the trial court misinterpreted the receiving requirement set
forth under section 7611, subdivision (d). Section 7611, subdivision (d) provides that a
person is a presumed parent if he or she “receives the child into his or her home and
openly holds out the child as his or her natural child.”6 The statute does not expressly
define what actions constitute receiving a child into a home. In its statement of decision,
the trial court expressed the view that receiving daughter into his home required W.S. to
prove regular visitation and the assumption of parent-type obligations and duties such as
feeding, bathing, putting daughter to bed, changing her clothes, disciplining her, and
other similar tasks. W.S. argues section 7611, subdivision (d) only required him to
physically take daughter inside his home, and the trial court’s additional requirements
were superfluous and not within the meaning of the statute. As we explain below, we
reject W.S.’s claim.
a. Overview and Standard of Review
W.S. questions the trial court’s interpretation of section 7611, subdivision (d).
The interpretation of a statute is a question of law, which we review de novo. (People ex
rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal. 4th 415, 432.)
When construing a statute, we ascertain the Legislature’s intent in order to carry
out the purpose of the law. (Cummins, Inc. v. Superior Court (2005) 36 Cal. 4th 478,
487.) We first examine the language of the statute. If the language is not ambiguous,
“we presume the Legislature meant what it said, and the plain meaning of the statute
governs.” (Hunt v. Superior Court (1999) 21 Cal. 4th 984, 1000.) However, “if the
statutory language permits more than one reasonable interpretation, courts may consider
6
The parties did not dispute that W.S. held daughter out as his own child. They
only disputed whether W.S. received daughter into his home within the meaning of
section 7611, subdivision (d).
9
various extrinsic aids, including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme encompassing the statute.
[Citation.] In the end, we ‘ “must select the construction that comports most closely with
the apparent intent of the Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that would lead to absurd
consequences.” ’ ” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal. 4th 995, 1003.)
b. “Receiving” Requirement
W.S. argues the receiving requirement set forth under section 7611,
subdivision (d) is satisfied by a parent physically taking a child into his or her home.
Thus, he argues the trial court erred when it concluded he did not receive daughter into
his home. For the reasons set forth below, we disagree.
The Uniform Parentage Act (§ 7600 et seq.) (UPA) distinguishes presumed fathers
from biological and alleged fathers. (In re J.L. (2008) 159 Cal. App. 4th 1010, 1018.)
Biology is not determinative of presumed fatherhood. (In re T.R. (2005) 132 Cal. App. 4th
1202, 1209 (T.R.).) Mothers and presumed fathers have far greater rights. (Adoption of
Kelsey S. (1992) 1 Cal. 4th 816, 824 (Kelsey S.).) A father is not elevated to presumed
father status unless he has demonstrated a “commitment to the child and the child’s
welfare . . . regardless of whether he is biologically the father.” (T.R., supra, at p. 1212.)
Section 7611 sets forth several rebuttable presumptions of paternity. “ ‘The
statutory purpose [of section 7611] is to distinguish between those fathers who have
entered into some familial relationship with the mother and child and those who have
not.’ ” (T.R., supra, 132 Cal.App.4th at p. 1209.) Section 7611, subdivision (d) creates a
rebuttable presumption of presumed fatherhood if “[t]he presumed parent receives the
child into his or her home and openly holds out the child as his or her natural child.”
Section 7611, subdivision (d) does not provide an express definition of what
constitutes receipt of a child into a parent’s home. However, several courts have
10
analyzed the roots of the “receiving” element. In Charisma R. v. Kristina S. (2009) 175
Cal. App. 4th 361, 369 (Charisma R.), disapproved on another point in Reid v. Google,
Inc. (2010) 50 Cal. 4th 512, 532, the court noted “receives” as used in section 7611,
subdivision (d), came from former Civil Code section 230, which pre-dated the UPA and
codified the concept of legitimacy. (Charisma R., supra, at p. 371.) At that time, former
Civil Code section 230 provided: “The father of an illegitimate child, by publicly
acknowledging it as his own, receiving it as such, with the consent of his wife, if he is
married, into his family, and otherwise treating it as if it were a legitimate child, thereby
adopts it as such; and such child is thereupon deemed for all purposes legitimate from the
time of its birth.” (Former Civ. Code, § 230, repealed by Stats. 1975, ch. 1244, § 8,
p. 3196.) In 1975, the Legislature enacted the UPA, which abolished the concept of
legitimacy or illegitimacy and replaced it with the concept of parentage. (Kelsey S.,
supra, 1 Cal.4th at p. 828.) Former Civil Code section 230 was replaced by section 7611,
subdivision (d). (Kelsey S., supra, at pp. 827-828; Charisma R., supra, at p. 371.)
Prior to the enactment of the UPA, courts liberally interpreted what constituted
“receipt” into the home. (In re Richard M. (1975) 14 Cal. 3d 783, 794.) In Richard M.,
the Supreme Court concluded “[the] requirement [was] satisfied by evidence that the
father accepted the child as his own, usually demonstrated by an actual physical
acceptance of the child into the father’s home to the extent possible under the particular
circumstances of the case. Thus the father receive[d] the child into his family when he
temporarily reside[d] with the mother and child, even for a brief period.” (Ibid.) “The
statutory receipt requirement [was] also fulfilled by the father’s acceptance of the child
into his home for occasional temporary visits.” (Id. at p. 795.) Additionally, in Estate of
Peterson (1963) 214 Cal. App. 2d 258, the court found the father received the daughter
into his home when she visited briefly once and spent two weekends at the home of the
father and his wife. (Id. at pp. 263-264.)
11
W.S. correctly asserts that there is no requirement that a child live with a parent
for the parent to achieve presumed parent status. (See In re A.A. (2003) 114 Cal. App. 4th
771, 784 (A.A.) [finding presumed father status when child never lived with presumed
father].) W.S., however, broadly interprets section 7611, subdivision (d) to require only
that daughter was physically present inside his home. W.S. relies on cases like Richard
M. and Peterson and their liberal interpretation of the receiving requirement to support
this claim. However, a review of cases analyzing the receiving requirement post-UPA
compels us to reject his argument. “Section 7611, subdivision (d) . . . requires something
more than a man’s being the mother’s casual friend or long-term boyfriend; he must be
‘someone who has entered into a familial relationship with the child: someone who has
demonstrated an abiding commitment to the child and the child’s well-being’ regardless
of his relationship with the mother.” (In re D.M. (2012) 210 Cal. App. 4th 541, 553.) In
other words, the child’s physical presence within the alleged father’s home is, by itself,
insufficient under section 7611, subdivision (d).
In Kelsey S., our Supreme Court acknowledged that historically under cases like
Richard M., there was a liberal interpretation of the receiving requirement, and even
constructive receipt was potentially sufficient. (Kelsey S., supra, 1 Cal.4th at p. 828.)
However, cases pre-dating the UPA like Richard M. were decided in a much different
statutory context. When Richard M. was decided, “the determination was whether the
child had been legitimated by the father.” (Ibid., italics added.) There was stigma and
unfavorable legal treatment attached to a classification of a child as illegitimate. (Ibid.)
An illegitimate child had no legal father. In contrast, after the enactment of the UPA and
the replacement of the concept of legitimacy with parentage, children will end up with a
father, whether it be a biological father that is granted presumed father status or an
adoptive father. (Id. at pp. 828-829.) Thus, Kelsey S. held that the child must be
12
physically received into the home, and constructive receipt is insufficient. (Id. at
pp. 826-830.)
Following Kelsey S., courts have found that the receiving requirement was met if
the “receipt of the child into the home [was] sufficiently unambiguous as to constitute a
clear declaration regarding the nature of the relationship . . . .” (Charisma R., supra, 175
Cal.App.4th at p. 374.) A father does not need to receive the child into his home for a
specific period of time, although cohabitation for an extended period of time may
strengthen a claim for presumed parent status. (Ibid.) However, to receive a child into
his or her home, a parent must “demonstrate a parental relationship, however imperfect.”
(Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1023 (Jason P.).) “Presumed parent
status is afforded only to a person with a fully developed parental relationship with the
child.” (R.M. v. T.A. (2015) 233 Cal. App. 4th 760, 776.)
There are no specific factors that a trial court must consider before it determines
that a parent has “received” a child into the home and has established a parental
relationship. “In determining whether a man has ‘receiv[ed a] child into his home and
openly h[eld] out the child’ as his own [citation], courts have looked to such factors as
whether the man actively helped the mother in prenatal care; whether he paid pregnancy
and birth expenses commensurate with his ability to do so; whether he promptly took
legal action to obtain custody of the child; whether he sought to have his name placed on
the birth certificate; whether and how long he cared for the child; whether there is
unequivocal evidence that he had acknowledged the child; the number of people to whom
he had acknowledged the child; whether he provided for the child after it no longer
resided with him; whether, if the child needed public benefits, he had pursued completion
of the requisite paperwork; and whether his care was merely incidental.” (T.R., supra,
132 Cal.App.4th at p. 1211.)
13
In Charisma R., the appellate court found substantial evidence supported the
presumed parent finding when the parent attended the birth of the child, shared parenting
responsibilities for the first six weeks of the child’s life, cared for the child full time for
the following seven weeks, and held herself out as the child’s mother in various ways.
(Charisma R., supra, 175 Cal.App.4th at pp. 374-375.)
In Jason P., the appellate court upheld the trial court’s conclusion that the father
had sufficiently “received” his son at his apartment in New York, noting that the child
spent time at the father’s apartment in New York, the father made arrangements with his
assistant to accommodate the child while he was there, he took the child to the park when
he was not working, he fed, played music for, and read to the child, he arranged for an
allergist to see the child, he obtained a baby gate for the child to prevent him from falling
down the stairs in his apartment, and he gave the child his own room in the apartment.
(Jason P., supra, 9 Cal.App.5th at p. 1022.) These acts “unambiguously demonstrated a
parental relationship” between father and child during his visits to his father’s New York
apartment. (Id. at p. 1023.)
In S.Y. v. S.B. (2011) 201 Cal. App. 4th 1023, the appellate court held there was
substantial evidence that a mother in a same-sex relationship had received their children
into her home. (Id. at p. 1032.) While in a relationship with her former partner, the
mother maintained a separate residence but regularly spent three or four nights a week at
her former partner’s home and helped take care of their first child. She also stopped by
after work to see the child and assisted in his care. (Ibid.) When the second child was
born, the mother was no longer in a relationship with her former partner. However, she
continued to go to her former partner’s home on weekdays and weeknights to spend time
with and take care of both children. (Ibid.) When the parties reconciled, the mother
resumed spending three or four nights a week at her former partner’s home, assisting with
the children’s care. (Ibid.)
14
In its statement of decision, the trial court relied on A.A., supra, 114 Cal. App. 4th
771. In A.A., the appellate court found there was insufficient evidence the child was
received into the respondent’s home within the meaning of section 7611, subdivision (d).
(A.A., supra, at pp. 786-787.) The respondent (biological father) asserted he visited the
child “ ‘on a fairly regular basis’ ” during the first year of her life and visited the child
every other weekend for the next three years. (Id. at p. 786.) The visits did not take
place in the respondent’s home. Absent an explanation for not having the visits take
place in his home, the court concluded “such visitation can be seen as a matter of
convenience for respondent.” (Ibid.) Visiting the child at other homes allowed the
respondent to “avoid the constant parental-type tasks that come with having the child in
his own home—such as feeding and cleaning up after the minor, changing her clothing,
bathing her, seeing to her naps, putting her to bed, taking her for outings, playing games
with her, disciplining her, and otherwise focusing on the child.” (Id. at pp. 786-787.) In
fact, there was no indication of what the respondent did with the child during her visits.
(Id. at p. 787.)
In contrast, the A.A. court found there was sufficient evidence the appellant (not
the biological father) met the requirements to achieve presumed father status under
section 7611, subdivision (d). (A.A., supra, 114 Cal.App.4th at p. 784.) Although the
child did not live with appellant on a full-time basis, he was regularly involved with the
child since her birth. (Ibid.) The appellant also provided financial support for the child,
buying her clothes, toys and food, and other essentials. (Ibid.)
The trial court also relied on In re Cheyenne B. (2012) 203 Cal. App. 4th 1361,
1369 (Cheyenne B.). In Cheyenne B., the father was incarcerated when the child was
born and sporadically visited her several times. (Ibid.) Sometimes he would meet her at
a local Wal-Mart when he drove through the town where she lived. (Ibid.) The appellate
court concluded substantial evidence supported the trial court’s determination that the
15
father’s visits with the child were too inconsistent and irregular to satisfy the requirement
that he received the child into his home. (Id. at p. 1380.)
Cheyenne B. characterized A.A. as requiring “regular visitation” in order to satisfy
receipt under section 7611, subdivision (d). (Cheyenne B., supra, 203 Cal.App.4th at
p. 1379.) The trial court referenced this “ ‘regular visitation’ ” standard in its statement
of decision, explaining that the receiving element could be satisfied by showing “ ‘regular
visitation,’ ” which included “assumption of parent-type obligations and duties . . . .”
This statement demonstrates the trial court understood that to become a presumed parent,
one must show a parental, family-child relationship. (R.M. v. T.A., supra, 233
Cal.App.4th at p. 776.) We find this to be an accurate representation of the law. The
common thread between the cases we have discussed is that the parent seeking presumed
parent status could show the existence of a parent-child relationship based on assuming
parental responsibilities, demonstrating commitment to the child, and providing support.
That is the standard the trial court applied in W.S.’s case.
W.S. argues that cases like A.A. and Cheyenne B. limit their holdings to
dependency proceedings. Principally, W.S. relies on In re Jerry P. (2002) 95
Cal. App. 4th 793 (Jerry P.). The Jerry P. court explained that in dependency proceedings
the purpose of section 7611, subdivision (d) is not to establish paternity but “to determine
whether the alleged father has demonstrated a sufficient commitment to his parental
responsibilities to be afforded rights not afforded to natural fathers—the rights to
reunification services and custody of the child.” (Jerry P., supra, at p. 804.) Thus, Jerry
P. held that in the dependency context, the term “ ‘presumed father’ does not denote a
presumption of fatherhood in the evidentiary sense and presumed father status is not
rebutted by evidence someone else is the natural father.” (Ibid.)
Nothing in Jerry P. suggests that we must interpret section 7611, subdivision (d)
differently depending upon whether it is applied in the dependency context or in some
16
other proceeding. As explained in Jerry P., the purpose served by determining presumed
parent status in a dependency proceeding is different than in a proceeding to determine a
parental relationship. In a dependency proceeding, the presumed parent status entitles
one to services not available to a natural parent who has not attained that status.
However, it would make little sense to apply one definition of “receiving” as used in
section 7611 to dependency actions while applying another definition to all other
proceedings. Section 7611 should be subject to only one interpretation, regardless of the
type of action in which it is used.
W.S. also argues the trial court impermissibly evaluated him using the factors set
forth in Kelsey S., supra, 1 Cal. 4th 816. Under Kelsey S., certain fathers may acquire the
rights of a presumed father without meeting the requirements of any of the statutory
presumptions, including the presumption set forth under section 7611. Under Kelsey S.,
“ ‘an unwed biological father who comes forward at the first opportunity to assert his
paternal rights after learning of his child’s existence, but has been prevented from
becoming a statutorily presumed father under section 7611 by the unilateral conduct of
the child’s mother or a third party’s interference’ acquires a status ‘equivalent to
presumed parent status under section 7611.’ ” (In re D.A. (2012) 204 Cal. App. 4th 811,
824.) Kelsey S. held that a father who promptly steps forward and assumes parental
responsibilities cannot have his parental rights terminated absent a showing of his
unfitness as a parent even if he does not meet the statutory requirements of section 7611.
(Kelsey S., supra, at p. 849.)
There is some overlap in the factors used to determine whether a man is a
presumed father under section 7611 and whether he is a father within the meaning of
Kelsey S. (See In re Elijah V. (2005) 127 Cal. App. 4th 576, 582.) The trial court’s
consideration of certain factors that are also relevant to the Kelsey S. analysis does not
demonstrate a misunderstanding of the receiving element under section 7611. As we
17
have explained, a father “receives” the child into his home if he unambiguously
demonstrates a parental relationship. (Charisma R., supra, 175 Cal.App.4th at p. 374;
Jason P., supra, 9 Cal.App.5th at p. 1023.) Demonstrating a parental relationship
requires W.S. prove more than the fact that daughter has been inside his home. Thus, the
trial court correctly considered whether W.S. assumed parental responsibilities and took
on the role of a parent in daughter’s life. 7
2. Visitation Rights
Next, W.S. argues that as daughter’s biological father, he has a right to visitation
under section 3100. He insists the provision regarding visitation found in section 3100
operates notwithstanding his failure to achieve status as a presumed parent.
Alternatively, he claims that even if he was not a presumed parent, the court had the
discretion to grant visitation rights to nonparents, and it failed to exercise this discretion.
First, we find that section 3100 is inapplicable in the context of this case.
Section 3100, subdivision (a) begins by specifying that it applies when the court makes
“an order pursuant to Chapter 4 (commencing with Section 3080)” of the Family Code,
which discusses joint custody orders. (§ 3100, subd. (a).) Here, W.S. requested joint
custody of daughter. However, since he failed to establish parentage under the UPA, the
court did not make any joint custody orders. Thus, it did not make “an order pursuant to
Chapter 4” of the Family Code, and section 3100’s provisions providing for visitation
(both for parents and for interested parties) are inapplicable here. (See Ed H. v. Ashley C.
(2017) 14 Cal.App.5th 899, 912 [“section 3100 applies only when a joint custody order is
7
In addition to addressing W.S.’s arguments, S.T. argues in her respondent’s brief
that sufficient evidence supported the trial court’s conclusion that W.S. did not achieve
presumed parent status. We decline to address this argument. W.S. did not raise this
claim in his opening brief. Issues not raised in the appellant’s opening brief are deemed
waived or abandoned. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th
266, 296, fn. 7.)
18
involved”].) Accordingly, the trial court did not err when it did not order visitation for
W.S., either as a parent or as an interested non-parent.
Second, W.S.’s argument that section 3100’s provision providing for parental
visitation applies to him fails as a matter of law. W.S. argues that a “parent” under
section 3100 is not limited to presumptive parents as defined under the UPA. W.S.’s
claim is a question of law that we review de novo. (People ex rel. Lockyer v. Shamrock
Foods Co., supra, 24 Cal.4th at p. 432.)
“Division 8, part 2 of the Family Code governs the right to custody of a minor
child. Part 2 applies not only to dissolution, nullity and legal separation proceedings and
actions for exclusive custody, but also to proceedings to determine custody or visitation
in actions brought under the . . . UPA. (§ 3021, added by Stats. 1993, ch. 219, § 116.11.)
The Law Revision Commission comments to this section are particularly pertinent: ‘This
section expands the application of this part to proceedings in which custody or visitation
is determined in an action pursuant to . . . the [UPA]. . . .’ ” (Barkaloff v. Woodward
(1996) 47 Cal. App. 4th 393, 397-398.) Section 3100, subdivision (a), which is found in
division 8, part 2 of the Family Code, provides in pertinent part: “In making an order
pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable
visitation rights to a parent unless it is shown that the visitation would be detrimental to
the best interest of the child.”
Section 3100 does not expressly define the term “parent.” W.S., however, brought
an action under the UPA to determine the existence of a parental relationship. The UPA
determines parentage—the “parent and child relationship”—as “the legal relationship
existing between a child and the child’s natural or adoptive parents . . . . The term
includes the mother and child relationship and the father and child relationship.” (§ 7601,
subd. (b), italics added.) The UPA further provides that the “parent and child relationship
may be established as follows: (a) Between a child and the natural parent, it may be
19
established by proof of having given birth to the child, or under this part.” (§ 7610,
subd. (a), italics added.) This “part” includes section 7611. As we have previously
discussed, section 7611, subdivision (d) provides that a person is a presumed parent if he
or she “receives the child into his or her home and openly holds out the child as his or her
natural child.”
Thus, one way for W.S. to establish he is a natural parent under the UPA is to
prove he meets the statutory elements of the presumption set forth under section 7611,
subdivision (d). Here the trial court found W.S. did not meet the elements of the
presumption. In other words, although W.S. is daughter’s biological father, he is not a
“natural parent” as defined under the UPA. Therefore, he does not have a parent-child
relationship with daughter, and the trial court did not err by declining to award him
visitation under section 3100 as a “parent.”
Lastly, we find W.S.’s reliance on Camacho v. Camacho (1985) 173 Cal. App. 3d
214 to be unavailing. He argues Camacho held that a biological father has a right to
visitation. Camacho does not aid W.S. The father in Camacho filed a suit to establish
paternity and obtain visitation, and the trial court adjudicated him the child’s natural
father. (Id. at p. 217.) Unlike the father in Camacho, W.S. was unsuccessful in
establishing parentage.
3. Constitutionality of the Statutory Scheme
W.S. raises several constitutional challenges to the statutory scheme of the UPA
and the Family Code. He argues he has a liberty interest, protected as a matter of
substantive due process, in his relationship with daughter. He also argues section 3010
violates equal protection principles, because it automatically grants custody to biological
mothers while requiring fathers to establish “presumed” parenthood under section 7611.
He argues California law further divides fathers into various subclasses based on their
marital status, readily granting married fathers presumed parenthood status while
20
requiring unmarried fathers to additionally prove receipt of the child into the home and
acknowledgement of the child as his own.
Preliminarily, we find W.S.’s constitutional arguments are waived for failure to
raise them to the trial court. “ ‘ “Typically, constitutional issues not raised in earlier civil
proceedings are waived on appeal.” ’ ” (Neil S. v. Mary L. (2011) 199 Cal. App. 4th 240,
254 (Neil S.).) W.S. did not discuss these constitutional issues in either his trial brief or
his original petition to establish a parental relationship.
Furthermore, even if we were to consider W.S.’s arguments as pure questions of
law presented by undisputed facts, we would reject them. First, we find Kelsey S., supra,
1 Cal. 4th 816 instructive on whether W.S. had a protected liberty interest in establishing
a parental relationship with daughter and whether his rights were entitled to equal
protection as to a mother’s rights. The Kelsey S. court construed former section 7004,
which has since been renumbered to section 7611. The court noted that an unwed father
has a constitutional due process right to establish a parental relationship with his child
only if he “promptly comes forward and demonstrates a full commitment to his parental
responsibilities—emotional, financial, and otherwise . . . .” (Kelsey S., supra, at p. 849.)
“A court should consider all factors relevant to that determination. The father’s
conduct both before and after the child’s birth must be considered. Once the father
knows or reasonably should know of the pregnancy, he must promptly attempt to assume
his parental responsibilities as fully as the mother will allow and his circumstances
permit. In particular, the father must demonstrate ‘a willingness himself to assume full
custody of the child—not merely to block adoption by others.’ [Citation.] A court
should also consider the father’s public acknowledgment of paternity, payment of
pregnancy and birth expenses commensurate with his ability to do so, and prompt legal
21
action to seek custody of the child.”8 (Kelsey S., supra, 1 Cal.4th at p. 849, fn. omitted.)
Thus, the statutory presumption set forth in section 7611 violates due process and equal
protection principles only if it is applied to an “unwed father who has sufficiently and
timely demonstrated a full commitment to his parental responsibilities.” (Kelsey S.,
supra, at p. 849.) “Absent such a showing, the child’s well-being is presumptively best
served by continuation of the father’s parental relationship. Similarly, when the father
has come forward to grasp his parental responsibilities, his parental rights are entitled to
equal protection as those of the mother.” (In re Ariel H. (1999) 73 Cal. App. 4th 70, 73.)
Here the trial court expressly found that W.S. did not take prompt legal action to
obtain custody, did not assist S.T. in prenatal care or pay for birth expenses, was not
involved in daughter’s healthcare, and did not give daughter parental-type care when she
visited. In short, W.S. did not demonstrate a full commitment to his parental
responsibilities. Absent such a demonstrated commitment, W.S. did not have a protected
liberty interest in establishing a parental relationship with daughter and his parental rights
were not entitled to equal protection as to those of a mother. (Kelsey S., supra, 1 Cal.4th
at pp. 849-850; In re Ariel H., supra, 73 Cal.App.4th at pp. 72-74.)
Second, W.S.’s claim that the statute unconstitutionally prefers married fathers
over unmarried fathers in violation of equal protection principles is undeveloped on
appeal. “ ‘ “The first prerequisite to a meritorious claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.” ’ ” (Walgreen Co. v. City and County of San
Francisco (2010) 185 Cal. App. 4th 424, 434.) “There is no constitutional requirement of
uniform treatment. [Citations.] Legislative classification is permissible when made for a
lawful state purpose and when the classification bears a rational relationship to that
8
We briefly discussed the Kelsey S. factors earlier in our opinion, when we
evaluated W.S.’s claim that he qualified as a presumed parent under section 7611.
22
purpose. [Citations.] ‘Wide discretion is vested in the Legislature in making the
classification and every presumption is in favor of the validity of the statute; the decision
of the Legislature as to what is a sufficient distinction to warrant the classification will
not be overthrown by the courts unless it is palpably arbitrary. . . .’ ” (Estate of Horman
(1971) 5 Cal. 3d 62, 75.) “When legislation involves a suspect classification such as
classifications based on race, nationality or alienage, or the disparate treatment has a real
and appreciable impact on a fundamental interest or right, a heightened standard of
scrutiny is applied. [Citations.] In such cases, legislation will be upheld only if it is
shown the state ‘ “has a compelling interest [that] justifies the law” ’ and ‘ “that
distinctions drawn by the law are necessary to further its purpose.” ’ ” (Neil S., supra,
199 Cal.App.4th at p. 254.)
In his opening brief, W.S. does not explain how or why unmarried fathers and
married fathers are similarly situated to each other. Nor does he explain or make
arguments pertaining to what level of scrutiny should apply if the two groups are
similarly situated to each other. Having failed to support his conclusory equal protection
claim with reasoned legal analysis and citations to the law, we consider it waived.
(Benach v. County of Los Angeles (2007) 149 Cal. App. 4th 836, 852.)
4. Timeliness of W.S.’s Request to Establish a Parental Relationship
W.S. argues the trial court erred when it determined his petition to establish a
paternal relationship was untimely. He argues the trial court’s statement of decision is
replete with references to his failure to take earlier legal action to establish his parental
rights, which it should not have taken into consideration.
W.S. is correct that there is no statute of limitations for requesting custody or
visitation of one’s child. Under section 7630, subdivision (b), “[a]ny interested party
may bring an action at any time for the purpose of determining the existence or
23
nonexistence of the parent and child relationship presumed under subdivision (d) or (f) of
section 7611.”
W.S., however, is incorrect that the trial court found his request to be untimely. At
no point did the trial court indicate in its statement of decision that it believed W.S.’s
petition was barred by the statute of limitations. Rather, the trial court referenced the
timeliness of his petition when it examined whether W.S. promptly stepped forward and
assumed parental responsibilities, a factor it properly considered when considering if he
achieved presumed parent status.9 (T.R., supra, 132 Cal.App.4th at p. 1211 [whether
father promptly took legal action to obtain custody of child is a factor courts have
considered when determining whether father received child into home].) The court’s
statements about W.S.’s timeliness did not demonstrate a misunderstanding of the law.
5. Bias
Lastly, W.S. argues the trial court’s ruling on his petition raises doubts as to
whether its decision was the product of bias. He argues bias can be inferred, because the
trial court found S.T. to be credible despite her lack of candor during her testimony, in
her trial briefs, and in her pleadings.
W.S.’s argument has no merit. “A party has the right to an objective decision
maker and to a decision maker who appears to be fair and impartial.” (Wechsler v.
Superior Court (2014) 224 Cal. App. 4th 384, 390.) As the trier of fact, the trial court
must evaluate the credibility of witnesses and make determinations when conflicting
evidence is presented. The trial court’s “reliance on certain witnesses and rejection of
others cannot be evidence of bias no matter how consistently the [trial court] rejects or
doubts the testimony produced by one of the adversaries. . . . ‘total rejection of an
9
It is also a factor that is properly considered when determining if W.S. had a
protected due process right to establish a relationship with daughter, as we previously
discussed.
24
opposed view cannot by itself impugn the integrity or competence of a trier of fact.’ ”
(Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal. 3d 781, 796.) We cannot
find prejudice merely because the trial court found some witnesses, such as S.T., to be
credible.
DISPOSITION
The order is affirmed. S.T. is entitled to her costs on appeal.
25
Premo, Acting P.J.
WE CONCUR:
Bamattre-Manoukian, J.
Grover, J.
W.S. v. S.T.
H042611
Trial Court: Santa Clara County Superior Court
Superior Court No. 1-14-CP021742
Trial Judge: Hon. Drew. C. Takaichi
Counsel for Appellant: Walzer Melcher
W.S. Edward M. Lyman
Counsel for Respondent: Dominion Law Group
S.T. Kevin S. Hutchinson
W.S. v. S.T.
H042611