In Re Jesusa
Jesusa V. became the subject of this dependency action when her biological father, Heriberto C., was taken into police custody for beating and raping her mother, and her mother, who was pregnant at the time, was hospitalized because of her injuries. At the detention hearing, the juvenile court ordered Jesusa to be placed with Paul B., the mother‘s husband and the father of her five other children.
This set of facts presents three principal issues: Did the juvenile court err in making a declaration of presumed fatherhood at a hearing conducted in Heriberto‘s absence but in the presence of his attorney? If not, did the juvenile court err in declaring Paul — instead of Heriberto, the biological father — to be Jesusa‘s presumed father? And, in any event, did the juvenile court err in adjudicating the dependency petition while Heriberto was absent but his counsel was present? We find that the juvenile court erred only in adjudicating the dependency petition in Heriberto‘s absence, but that the error was harmless. We therefore affirm in part and reverse in part the judgment of the Court of Appeal.
BACKGROUND
On April 1, 2001, Jesusa V., who was not yet two years old, was taken into protective custody after her biological father, Heriberto C., raped and beat her mother. The mother, who was seven months pregnant with Heriberto‘s child, was hospitalized. The Long Beach police officers who arrested Heriberto reported that the motorhome where the three were residing was filthy and unsuitable to live in.
The Los Angeles County Department of Children and Family Services (DCFS) thereafter filed a dependency petition that, as modified, alleged that Heriberto had a long history of violent and aggressive behavior, that Heriberto had raped and beaten Jesusa‘s mother, that at that time and on other occasions Jesusa had been “exposed to violent confrontations” between her mother and Heriberto, and that her mother had failed to take action to protect the child. Jurisdiction was alleged under
Heriberto was in jail at the time of the detention hearing on April 4, 2001, and did not appear. Jesusa‘s mother appeared at the hearing with her husband, Paul B. The couple had been married for nearly 18 years, although they had lived apart for the preceding three years. They had five children together. Paul, who was a sergeant in the United States Air Force in San Diego, promptly requested presumed father status under
Paul testified that Jesusa had lived with him from time to time when her mother came to San Diego to visit her other children and that her most recent visit had been a month earlier. The juvenile court found a prima facie basis to detain Jesusa and released her to Paul‘s custody. The court also made a tentative finding, subject to later rebuttal, that Paul was Jesusa‘s presumed father.
When Heriberto appeared in court about a week later, counsel was appointed to represent him. Heriberto denied the allegations in the petition and announced his intent to seek presumed father status. The juvenile court issued a removal order (
On April 30, the juvenile court continued the matter to July 17, 2001, and again issued a removal order for Heriberto.
On May 21, 2001, in a separate criminal proceeding, Heriberto pleaded no contest to one count of raping Jesusa‘s mother on the night in question and was sentenced to three years in prison with an immigration hold. Because of an intervening transfer to North Kern State Prison, however, the juvenile court‘s removal order directed to the Los Angeles County Sheriff was ineffective. Heriberto therefore was not present when the parties reconvened on July 17. Counsel objected and asked for another continuance, asserting that proceeding in Heriberto‘s absence would violate due process. The court, after remarking that it had been under the impression the issue of paternity “would be fully decided on the briefs and argument on the briefs” without taking testimony (and observing that Heriberto had indeed filed such a brief), inquired of counsel what testimony Heriberto could provide. Counsel‘s response described evidence that encompassed “the extent in which [Heriberto] held out paternity, publicly acknowledged paternity for Jesusa, and formal steps he [took] to identify [her as his daughter to] ... government agencies” as well as the truth or falsity of the allegations of domestic violence in the dependency petition. The court then explained that, to resolve the issue of presumed fatherhood, it would not be making a finding as to the truth of the allegations in the petition and would consider only the mother‘s statements that she had on occasion sought refuge with her husband, Paul. The court also credited the representations made by counsel — i.e., that Heriberto was Jesusa‘s biological father, that he had held himself out as her father, and that he had received the child into his home. Accordingly, the court denied the request for a continuance.
After observing that either man — Heriberto or Paul — thus qualified as a presumed father, the juvenile court found the weightier interest favored Paul, who had been married to Jesusa‘s mother at the time Jesusa was conceived and born; who was still married to Jesusa‘s mother; who had held himself out as Jesusa‘s father, had received her into his home, and had treated her as his own; who was the father of Jesusa‘s five half siblings, all of whom still lived with him and also had developed a bond with Jesusa; and who had lived with Jesusa for a significant period in her young life. “In other words, there is so much more to being a father than merely planting the biological seed. The man who provides the stability, nurturance, family ties, permanence, is more important to a child than the man who has mere biological ties.... [¶] By finding [Paul] is the presumed
The juvenile court then proceeded to adjudicate the dependency petition, again over counsel‘s objection that Heriberto was absent. Based on several DCFS reports, the arrest report, and the police follow-up report, the court sustained the dependency petition, maintained Jesusa in Paul‘s custody, permitted the mother to have unmonitored visits with her child and granted her reunification services, and ordered Heriberto to have no contact with the child.
Heriberto appealed. The Court of Appeal affirmed in part and reversed in part in a published opinion. The appellate court affirmed the order identifying Paul as Jesusa‘s presumed father but reversed the order sustaining the dependency petition, reasoning that the lower court had lacked jurisdiction under
DISCUSSION
A
Although Heriberto was represented by counsel at the presumed fatherhood hearing, he claims the trial court violated
The hearing on presumed fatherhood was governed instead by
The record demonstrates the juvenile court did not abuse its discretion in proceeding without Heriberto‘s personal attendance at the presumed fatherhood hearing. (In re Barry W., supra, 21 Cal.App.4th at pp. 370-371, 26 Cal.Rptr.2d 161.) When asked what testimony Heriberto could have provided, counsel‘s offer encompassed only evidence that established Heriberto‘s threshold qualifications for presumed father status — i.e., “the extent in which [Heriberto] held out paternity, publicly acknowledged paternity for Jesusa, and the formal steps he [took] to identify [her as his daughter to] ... government agencies.”3 In response, the court announced that it did not intend to determine “what [Heriberto] has done with regard to filling out documents with public agencies or government agencies or whatever he has done to confirm that he holds himself out as to the father” but would instead assume that Heriberto had held himself out as the father and did receive the child into his home. Since the court then declared that ”both of these men or either of these men could be found to be presumed fathers,” Heriberto‘s testimony became unnecessary.
The juvenile court‘s approach was also consistent with the California Rules of Court, which permit a determination of paternity without an evidentiary hearing. “The court may make its determination of paternity or nonpaternity based on the testimony, declarations, or statements of the mother and alleged father.” (Cal. Rules of Court, rule 1413(e)(2).) In this
Heriberto‘s constitutional claim fares no better. Although there is no dispute that prisoners have a constitutional right of access to the courts (Payne v. Superior Court, supra, 17 Cal.3d at p. 914, 132 Cal.Rptr. 405, 553 P.2d 565) and that “absent a countervailing interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard” (Boddie v. Connecticut (1971) 401 U.S. 371, 377, 91 S.Ct. 780, 28 L.Ed.2d 113), it does not follow that prisoners have a constitutional right to be personally present at every type of hearing. Due process guarantees ” `notice and opportunity for hearing appropriate to the nature of the case.’ ” (Id. at p. 378, 91 S.Ct. 780, italics added.) As we have observed, due process entitles a biological father a meaningful opportunity to qualify as a presumed father. (Kelsey S., supra, 1 Cal.4th at pp. 840, 843, 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) Yet, as with other due process rights, “[h]ow that is to be achieved is to be determined by the exercise of discretion by the trial court.” (Payne, supra, 17 Cal.3d at p. 927, 132 Cal.Rptr. 405, 553 P.2d 565.)
In this case, Heriberto was appointed an attorney to represent him at the presumed fatherhood hearing — an accommodation we have deemed sufficient for prisoners in other civil proceedings. (Payne v. Superior Court, supra, 17 Cal.3d at pp. 923-925, 132 Cal.Rptr. 405, 553 P.2d 565.) Through his attorney, Heriberto had the opportunity to call witnesses, to cross-examine adverse witnesses, and to present his own testimony in written form. Admittedly, he did not present any witnesses or submit such a declaration — but Heriberto must also acknowledge that his rape conviction rendered it improbable the court would have ordered reunification services (
Moreover, it appears that Heriberto was absent for only a portion of the presumed father hearing. Heriberto was present in court on April 13, when the court asked, “Do you want to be heard on any paternity issues today?” His attorney promptly responded that he “did discuss the matter” with Heriberto, who stated that he had lived with Jesusa‘s mother for three years, that he had held the child out as his own, and that he would be asking “for presumed [father] status.” The court invited counsel to brief the issue, consider having Heriberto file a declaration, and “be prepared, then, to argue that matter on April 30th.” On April 30, when Heriberto was again present, the court noted that it had recently received a brief from the minor in response to Heriberto‘s brief and was inclined to continue the matter. No party objected. On July 17, when the parties discovered that Heriberto‘s imprisonment
Our conclusion is consistent with the case law. In Axsana S., supra, 78 Cal.App.4th 262, 92 Cal.Rptr.2d 701, for example, the incarcerated father claimed a violation of due process when the juvenile court conducted a dispositional hearing on the dependency petition and denied him reunification services while his attorney was present but he was absent. The Court of Appeal held that the father “received meaningful access to the courts through his appointed counsel. In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.” (Id. at p. 269, 92 Cal.Rptr.2d 701; see also In re Dolly D. (1995) 41 Cal.App.4th 440, 445, 48 Cal.Rptr.2d 691.) Heriberto, like the father in Axsana S., “has cited no case law providing incarcerated parents a due process right to be present at dependency proceedings involving their children.” (Axsana S., supra, 78 Cal.App.4th at p. 270, 92 Cal.Rptr.2d 701.) To the contrary, other state courts have “repeatedly held that that the due process rights of a prisoner who has been prohibited from participating in a custody hearing are not violated where the prisoner was represented by counsel at the hearing and was neither denied an opportunity to present testimony in some form on his behalf nor denied the opportunity to cross-examine witnesses.” (Cook v. Boyd (E.D.Pa.1995) 881 F.Supp. 171, 175; see also In re T.N.T. (2002) 258 Ga.App. 396, 574 S.E.2d 444, 446-447.)
Accordingly, Heriberto was not denied any statutory or constitutional rights when the juvenile court proceeded to determine his presumed father status while his attorney was present but he was absent.
B
As the juvenile court recognized, both Paul and Heriberto satisfied the qualifications for presumed fatherhood under
Although more than one individual may fulfill the statutory criteria that give rise to a presumption of paternity, “there can be only one presumed father.” (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1115, 113 Cal.Rptr.2d 669 (Kiana A.); Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1223, 92 Cal.Rptr.2d 294.) How those competing presumptions are to be reconciled is set forth in
Heriberto claims that his biological paternity constitutes clear and convincing evidence rebutting Paul‘s claim to presumed fatherhood under
1
In In re Nicholas H. (2002) 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932 (Nicholas H.), we considered whether a presumption of fatherhood arising under
Our holding was based on the text of
As Heriberto points out, however, Nicholas H. involved an action in which no other man claimed parental rights to the child. The biological father, unlike Heriberto, had not come forward to assert his parental rights and could not be located. (Nicholas H., supra, 28 Cal.4th at p. 61, 120 Cal.Rptr.2d 146, 46 P.3d 932.) We therefore found it unnecessary to consider whether, under
As we observed in Nicholas H., the text of
Our analysis in Nicholas H. also was informed by
Finally, Nicholas H. relied on case law from the Court of Appeal, which on balance supported the paternity presumption of the nonbiological father. (Nicholas H., supra, 28 Cal.4th at pp. 64-70, 120 Cal.Rptr.2d 146, 46 P.3d 932.) A review of the case law reveals that the weight of authority similarly supports the nonbiological father here.
In Kiana A., supra, 93 Cal.App.4th 1109, 113 Cal.Rptr.2d 669, as is the case here, two men qualified as presumed fathers under
Kiana A. also relied on Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535, which upheld a finding of presumed fatherhood in favor of a man who had held out the сhild as his own, even though the competing presumed father
Heriberto cites only one case to the contrary — Brian C. v. Ginger K., supra, 77 Cal.App.4th 1198, 92 Cal.Rptr.2d 294 — but Brian C. does not go as far as he supposes. Brian C. involved a purported biological father who sought to challenge another man‘s “conclusive[ ]” presumption of paternity (
For the foregoing reasons, we reject Heriberto‘s contention that biological paternity by a competing presumed father necessarily rebuts another man‘s presumption of paternity under
No abuse of discretion occurred here. Paul has a substantial relationship with Jesusa. Not only is Paul married to Jesusa‘s mother, he is the father of Jesusa‘s five half siblings, all of whom live with him and have themselves established a close relationship with Jesusa. Although Jesusa and her mother resided with Heriberto before his arrest and incarceration, they visited Paul at his house nearly
The sole facts offered to support Heriberto, on the other hand, were that he was Jesusa‘s biological father, that he had “received the child into his home and openly held himself out as [her] natural father,” and that he had lived with Jesusa‘s mother prior to the conception and through her infancy. One must subtract, however, at least a three-month period in early 2000, when he was jailed in Colorado for assaulting the mother (and subsequently deported), as well as the period following his arrest and conviction for the current rape. During the remaining time, Jesusa‘s weekends — as well as additional periods of refuge that lasted as long as a month — were spent with Paul. Under the circumstances, the juvenile court did not abuse its discretion when it found this was not an appropriate action in which to rebut Paul‘s claim to presumed fatherhood.
2
Based on its finding that Heriberto and Paul each could claim a presumption of fatherhood, the juvenile court undertook to identify the presumption “which on the facts is founded on the weightier considerations of policy and logic” (
At the outset, we reject the notion that the juvenile court was bound by
The juvenile court thus was obliged to weigh all relevant factors — including biology — in determining which presumption was founded on weightier considerations of policy and logic. We conclude it did so.
The juvenile court found that Paul was married to Jesusa‘s mother; that they have five children together; that Jesusa had spent a “considerable amount of time” in Paul‘s home and had lived with him “for a significant amount of time during her young life“; that Jesusa had established a bonding relationship with Paul as well as with her siblings, all of whom live with him; and that a family unit existed there to protect the child. The court also found that Jesusa‘s mother often went to Paul‘s home to seek refuge from Heriberto — a fact that tended to confirm which father “provides the safety and stability and welfare that this child is entitled to have. [¶] [Paul] has assumed the parental rights and particularly assumed the parental responsibilities of this young child. He has lived with this child. He has treated her as his own.”
The facts supporting Heriberto‘s presumption, on the other hand, were less weighty. The juvenile court found that Heriberto lived with the mother when the child was conceived and born; that he was the biological father; and that he held himself out as Jesusa‘s father and received her into his home. Although the parties did not then have a copy of the judgment of conviction, the court did note the allegation of domestic violence the mother had lodged against Heriberto.
The juvenile court weighed the “competing interests” as follows: “[T]he court must look to the state interests in rendering its decision. The state interests rest on the policy to preserve and protect developing parent/child relationships which give young children social and emotional strength and stability. This is more important than establishing biological ties. [¶] In other words, there is so much more to being a father than merely planting the biological seed. The man who provides the stability, nurturance, family ties, permanence, is more important to a child than
Heriberto does not challenge the facts or the criteria on which the juvenile court relied. He claims instead that “because Heriberto shares a biological connection to Jesusa and has at least an equal, if not greater, relationship with Jesusa than Paul ... the conflict between the paternity presumption[s] must be resolved based upon biological paternity.” As support, he relies on Kiana A., supra, 93 Cal.App.4th at page 1120, 113 Cal.Rptr.2d 669, in which the Court of Appeal stated that “where the weight of the interests of the competing presumptive fathers are in relatively equal balance, biological paternity might properly be relied upon to determine which presumption carried more weight.” We find Kiana A. unhelpful to Heriberto for two reasons. First, Kiana A. stated only that biological paternity might be relied upon to determine paternity where the interests are otherwise in relatively equal balance, not (as Heriberto contends) that it must be so used. Second, the record here does not support Heriberto‘s characterization of his interests as equally balanced with Paul‘s. The juvenile court found Paul‘s interest to be the weightier one on the grounds that Jesusa had established a bond with Paul; that Paul was married to Jesusa‘s mother, who continued to visit Paul regularly and to seek refuge with him as protection from Heriberto; and that Jesusa had established a bond with her five siblings, who also lived with Paul. (Cf.
That Heriberto had satisfied the minimum requirements to qualify as a presumed father under
3
Heriberto claims next that failing to accord determinative weight to his biological relationship to Jesusa violated his due process right to parent Jesusa. We disagree.
Heriberto relies on Kelsey S., supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, in which we stated that a biological father‘s federal constitutional right to due process “prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Id. at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) What Heriberto fails to apprehend, though, is that the identification of another man as Jesusa‘s presumed father does not terminate Heriberto‘s parental relationship with the child. Indeed, neither Heriberto nor our dissenting colleagues cite anything to support their assertion that a declaration of Paul‘s presumed fatherhood has rendered Heriberto a legal stranger to the child. A declaration of presumed fatherhood entitles the presumed father to reunification services and custody of the child (In re Zacharia D., supra, 6 Cal.4th at p. 439, 24 Cal.Rptr.2d 751, 862 P.2d 751) but does not itself terminate the biological
Moreover, it appears that Heriberto, who never executed a voluntary declaration of paternity or described any other steps to formalize his role before the dependency petition was filed, has not ” `sufficiently and timely demonstrated a full commitment to his parental responsibilities’ ” to merit constitutional protection. (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1055, 43 Cal.Rptr.2d 445, 898 P.2d 891.) Unlike the unwed biological father in Kelsey S., supra, 1 Cal.4th at page 822, 4 Cal.Rptr.2d 615, 823 P.2d 1216, who filed an action two days after the child‘s birth to establish his parental relationship with the child and was thwarted only because the court‘s order granting him custody was disobeyed, Heriberto was living with the child‘s mother and presumably could have obtained her cooperation with any legal steps to formalize his relationship to the child. (See
To resolve Heriberto‘s alternate claim that denying him presumed father status unconstitutionally interfered with his right to parent Jesusa, we will first assume that Heriberto has a constitutionally protected liberty interest in maintaining his parent-child relationship with Jesusa. (Cf. Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 942, 72 Cal.Rptr.2d 871, 952 P.2d 1139 [distinguishing between “an unwed father‘s interest in maintaining and preserving an existing parent-child relationship” and “an unwed father‘s biological connection alone to a child born to a married woman“].) Then, applying traditional substantive due process principles, we must balance the competing private and state interests — i.e., Heriberto‘s largely abstract interest in being an absent presumed father while he remains in prison for raping Jesusa‘s mother, subject to deportation upon his release,7 against the substantial state interests in familial stability and the welfare of the child. (Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 360-363, 216 Cal.Rptr. 748, 703 P.2d 88; Kiana A., supra, 93 Cal.App.4th at pp. 1114-1115, 113 Cal.Rptr.2d 669; see generally In re Sade C.,
This inquiry resembles that already undertaken by the juvenile court in determining which paternity presumption was founded on the weightier considerations of policy and logic. (Kiana A., supra, 93 Cal.App.4th at p. 1121, 113 Cal.Rptr.2d 669 [alleged father “has been accorded due process through the statutory procedure which resulted in the juvenile court‘s determination his presumption was entitled to less weight“]; see Steven W. v. Matthew S., supra, 33 Cal.App.4th at p. 1116, 39 Cal.Rptr.2d 535.) Yet, Heriberto offers no reason why the result here should differ from that reached by the juvenile court. Indeed, Heriberto claims only that where both presumed fathers “have an equal relationship with Jesusa,” due process requires that biological paternity be determinative. We need not decide here the soundness of Heriberto‘s legal rule, inasmuch as we have already determined that Jesusa‘s relationship with him was not the equal of her relationship with Paul.
4
The dissenting opinions, which rely on arguments and authorities neither mentioned nor discussed by any of the parties, merit separate analysis.
(a) Justice Chin asserts that our holding will place at risk the father-child relationship for untold thousands of biological fathers “by a court‘s subjective and discretionary determination that some other man who qualifies as a presumed father would be a better father.” (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 278, 85 P.3d at p. 63.) But our holding does not apply to biological fathers who are married to and cohabit with the mother and are therefore conclusively presumed to be the father. (
(b) Justice Chin also asserts that the Legislature has “clearly” expressed its intent to make biology determinative as between competing presumed fathers. (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at pp. 243, 246, 85 P.3d at pp. 33, 36.) Yet he concedes, as he must, that California‘s UPA “does not expressly provide that one presumed father‘s established biological paternity necessarily rebuts the presumption of another presumed father under subdivision (a) of section 7611.” (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 244, 85 P.3d at p. 34.) Indeed, the legislative history on which he relies notes merely
Unlike our dissenting colleague, we find this omission significant. It is plain the Legislature knows how to craft a categorical rule for rebuttal of a presumption of fatherhood when it wants to. (Cf. People v. Trevino (2001) 26 Cal.4th 237, 241, 109 Cal.Rptr.2d 567, 27 P.3d 283.) In Family Code section 7612, subdivision (c), for example, the Legislature has provided that a statutory presumption “is rebutted by a judgment establishing paternity of the child by another man.” But the Legislature did not use such unequivocal language in subdivision (a), which states instead that the statutory presumption ”may be rebutted in an appropriate action only by clear and convincing evidence.” (Italics added.) The significance of biology under this provision is far from clear — especially when compared with statutes from other states, which have appended language to govern situations like the one here. In New Jersey, for example, the analog to section 7612, subdivision (c) provides: “`The presumption is rebutted by a court order terminating the presumed father‘s paternal rights or by establishing that another man is the child‘s natural or adoptive father.‘” (N.M. v. J.G. (N.J.Super.Ct.App.Div.1992) 255 N.J.Super. 423, 605 A.2d 709, 714, quoting
The omission of any mention of biological fatherhood in section 7612, subdivision (a) becomes even more significant when we consider the exceptions set forth in that provision: ”Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2 or in Section 20102, 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.” (Italics added.) In section 7541, the Legislature provided that the conclusive presumption under section 7540 is rebutted by evidence of biological fatherhood. (
Justice Chin‘s analysis also proceeds from a faulty premise. According to the dissent, if a husband‘s otherwise conclusive presumption under section 7540 “is necessarily rebutted by proof he is not the biological father, the rebuttable UPA presumptions [in subdivisions (a)-(e) of section 7611] must also be necessarily rebutted by such proof; in establishing the
It therefore is not surprising that our dissenting colleague has been unable to cite a single case in support of his view. Indeed, although Justice Chin deems the implication “unmistakable” (dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 243, 85 P.3d at p. 34), it has thus far eluded the justices in Kiana A., supra, 93 Cal.App.4th 1109, 113 Cal.Rptr.2d 669, and Steven W. v. Matthew S., supra, 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535, both of which support our holding, both of which Justice Chin would disapprove, and neither of which has provoked a corrective response by the Legislature.
The drafters of the revised UPA, who recently deleted provisions equivalent to subdivisions (a) and (b) of section 7612, also fail to support the dissent. According to the drafters, deletion of these provisions was appropriate because “[n]owadays the existence of modern genetic testing obviates this old approach to the problem of conflicting presumptions when a court is to determine paternity. Nowadays, genetic testing makes it possible in most cases to resolve competing claims to paternity.” (Amendments to the Uniform Parentage Act as Last Amended in 2002 with Prefatory Note and Comments (2003) 37 Fam. L.Q. 5, 17.) This commentary implies that the “old” approach — which is still the law in California — may have relied on something other than genetic testing to resolve competing presumptions. (See N.A.H. v. S.L.S., supra, 9 P.3d at p. 361, fn. 5 [“Other jurisdictions that have adopted the UPA have interpreted the presumption based on biology in the Act as rebuttable, rather than conclusive“].)
(c) Our dissenting colleagues’ proposed interpretation cannot be reconciled with Nicholas H., either. According to Justice Chin, the Legislature 50 years ago “directed courts to give controlling weight to evidence conclusively disproving the biological paternity of a particular man” (dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 246, 85 P.3d at p. 36), and “[n]othing” in
Yet, we recently — and unanimously — affirmed a declaration of presumed fatherhood in favor of a man who could not possibly have been the biological father in Nicholas H., relying on section 7612, subdivision (a), which did not exist 50 years ago. (See Nicholas H., supra, 28 Cal.4th at pp. 64-70, 120 Cal.Rptr.2d 146, 46 P.3d 932.) In accordance with that provision — the same provision on which we rely today — we found that “an action in which no other man claims parental rights to the child, an action in which rebuttal of the section 7611(d) presumption will render the child fatherless” was not an appropriate action in which to rebut the presumption. (Nicholas H., supra, 28 Cal.4th at p. 70, 120 Cal.Rptr.2d 146, 46 P.3d 932.)9 In other words, we relied on the best interests of the child and public policy in declining to rebut the willing candidate‘s presumption. (See In re Salvador M. (2003) 111 Cal.App.4th 1353, 1357-1358, 4 Cal.Rptr.3d 705 [“The paternity presumptions are driven, not by biological paternity, but by the state‘s interest in the welfare of the child and the integrity of the family“]; cf. In re Marriage of Wendy M. (1998) 92 Wash.App. 430, 962 P.2d 130, 133 [the “best interests of the child,” including the fact that the child would be left fatherless, are an appropriate consideration in a proceeding to disestablish paternity].) Justice Chin fails to explain why the same provision — i.e., section 7612, subdivision (a) — allows us to consider the child‘s best interest and public policy in determining whether the presumption is rebutted in Nicholas H. but not in this case. Or why courts must ignore the child‘s best interests in a dependency proceeding, the very purpose of which is to protect the child. (
(d) Justice Chin — and, to a lesser extent, Justice Kennard — rely on the provisions of the Uniform Act on Blood Tests to Determine Paternity (
First of all, no blood or genetic tests of any kind were requested, performed, or offered in these proceedings. These provisions therefore have no application here.
Our dissenting colleagues suggest that the failure to obtain genetic tests can be excused because the parties stipulated to Heriberto‘s paternity, but they offer no authority for this proposition. To the contrary, case law has strictly construed these testing requirements. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 240, 71 Cal.Rptr.2d 399 [“it is irrelevant that the biological father can prove his paternity or even that all parties to the proceedings may concede that plaintiff is the biological father“].) Moreover, given the extraordinary significance each would accord to
Second, the precise interplay between this statutory scheme and the UPA is not immediately apparent. As one commentator in this area has cautioned, “[a]n outmoded and confusing system of presumptions plays a central role in the California statutory scheme.” (Miller, Baseline, Bright Line, Best Interests: A Pragmatic Approach for California to Provide Certainty in Determining Parentage (2003) 34 McGeorge L.Rev. 637, 638-639 (Miller).) “[T]he law in this area is exceedingly complex.... It is not always clear how these provisions are to be reconciled.” (Anderlik, Disestablishment Suits: What Hath Science Wrought? (2003) 4 J. Center for Fam., Children & Cts. 3, 5, 6.) One thus has sound reason to doubt that the legislative intent is as clear as our dissenting colleagues insist it is — or, whatever the level of clarity, that the Legislature intended biology to be conclusive. (See id. at p. 10 [“The `biological imperative’ position seems to show up most frequently in concurring or dissenting opinions, suggesting that it is somewhat idiosyncratic among judges“]; id. at p. 11 [California appears to have embraced “a position of biological relevance: biology is not the whole story or even the most important part of the story“]; Miller, supra, 34 McGeorge L.Rev. at p. 640 [“While the California statutory scheme has gradually expanded the role of genetic testing, the legislative process has stopped short of making the genetic-biological relationship the baseline test for parentage“].) In any event, we hesitate to definitively construe the scheme where, as here, its provisions are inapplicable and the parties have not invoked it or analyzed it. We therefore do not do so.
With that caveat in mind, however, we can point out certain logical flaws that appear in Justice Chin‘s analysis. For example, he asserts that biology is necessarily determinative within the first two years of life. Yet he admits that section 7541, the provision that provides for a two-year time limit, “do [es] not apply to the other section 7611 presumptions” (such as Paul‘s) and that sections 7554 and 7555, the implications of which the dissent deems unmistakable, nowhere refer to the age of the child.10 (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 251, 85 P.3d at p. 40.) Neither can his construction of section 7554, under which biology necessarily rebuts an enumerated section 7611 presumption, be reconciled with Nicholas H.
The legislative history of section 7541 likewise fails to support either dissenting opinion. According to these materials, the 1990 amendment to section 7541 was intended to provide unwed biological fathers, who were previously foreclosed from challenging the husband‘s conclusive presumption of paternity,” `the opportunity to establish paternity‘” when they have demonstrated an interest in raising and providing for their children. (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 250, 85 P.3d at p. 39, italics added.) A mere opportunity for the unwed biological father to establish paternity hardly supports the claim that biology is necessarily determinative. Indeed, in construing a statute similar to section 7541, the Colorado Supreme Court observed that the provision “does not state that blood evidence is conclusive of fatherhood in all circumstances, or that it automatically eliminates other presumptions of fatherhood.” (N.A.H. v. S.L.S., supra, 9 P.3d at p. 361, italics added.)
(e) Justice Chin accuses the court of repudiating the policy set forth in Johnson v. Calvert (1993) 5 Cal.4th 84, 93, footnote 10, 19 Cal.Rptr.2d 494, 851 P.2d 776, where we declined to “`decide parentage based on the best interests of the child,’ because doing so `raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy, and confuses concepts of parentage and custody.‘” (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at p. 240, 85 P.3d at p. 31.) The dissent has once again confused apples and oranges. In this case, we are not selecting a policy to resolve competing claims when the statutory law is silent on the issue, but are instead giving effect to the language of the applicable statute. Because that statute directs us to consider whether rebuttal is appropriate and whether policy and logic favor one presumption over another, Johnson is not pertinent here.
In Johnson v. Calvert, we were charged with deciding which woman — the egg donor or the birth mother — was the child‘s “natural mother” under California law. (Johnson v. Calvert, supra, 5 Cal.4th at p. 87, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We discovered that the presumptions set forth now in section 7611 — the statute at issue here — “have no application to this case” but that both women had nonetheless “adduced evidence of a mother and child relationship as contemplated by the [UPA].” (Johnson v. Calvert, supra, 5 Cal.4th at p. 92, 19 Cal.Rptr.2d 494, 851 P.2d 776.) Unlike the situation here, the conflict was not resolved in the UPA itself. (Johnson v.
This case is unlike Johnson v. Calvert. In this case, the section 7611 presumptions do apply. In this case, section 7612 does tell us how presumptions can be rebutted — by clear and convincing evidence and only in an appropriate case — and how conflicting presumptions are to be resolved — by weighing considerations of policy and logic. Whatever our views as to whether the child‘s best interests should be considered in making parentage decisions, we cannot ignore the Legislature‘s directive.11
C
In the course of affirming the juvenile court‘s determination that Paul qualified as Jesusa‘s presumed father, the Court of Appeal criticized the juvenile court for addressing the issue of presumed fatherhood prior to the jurisdictional hearing. In the appellate court‘s view, “the trial court proceeded backward in this case because if it found no jurisdiction over the minor the issue of presumed fatherhood would be moot.” DCFS and amici curiae Northern California Association of Counsel for Children et al. ask us to disapprove this language and declare instead that a juvenile court has discretion to identify the presumed father once the dependenсy petition was filed — and that the juvenile court here did not abuse its discretion in doing so. We agree with DCFS and its amici curiae.
Where (as here) a child has been taken into temporary protective custody, the juvenile court is required to conduct a detention hearing as soon as possible and, in any event, no later than the next judicial day. (
There are two ways the juvenile court may proceed to determine the identity of a child‘s presumed father if no prior determination has been made. Under Welfare and Institutions Code section 316.2, subdivision (d) and Family Code section 7630, the alleged father may bring an action to be declared the presumed father. The juvenile court where the dependency petition is pending shall have exclusive jurisdiction to hear that action from the time the petition is filed until the petition is dismissed, the dependency is terminated, or parental rights are terminated. (
Nothing in these provisions requires the juvenile court to suspend its identification of the presumed father until after the dependency petition has been resolved. Indeed, subdivision (e) of Welfare and Institutions Code section 316.2 endows the juvenile court with exclusive jurisdiction to hear the paternity action at any time while the petition is pending. Heriberto offers no reason for supposing a different rule applies when the juvenile court proceeds on its own to identify the presumed father. Moreover, inasmuch as a dependency action could eventually result in the termination of parental rights, a court needs first to know the identities of the parents. The legal parents must be identified so that they may receive notice of the hearing; be provided counsel, if necessary; and be accorded a meaningful opportunity to be heard. As DCFS points out, “it would not make sense — or be possible in many cases — to adjudicate a dependency petition without first identifying which man is the child‘s father.” Thus, this seems to be a situation in which “the law cannot be judicially applied without a determination of parentage when such question is placed in issue.” (In re Lisa R. (1975) 13 Cal.3d 636, 643, 119 Cal.Rptr. 475, 532 P.2d 123.)
Heriberto nonetheless contends that a juvenile court does not have jurisdiction to identify the presumed father until after the dependency petition has been sustained. Although evidence must be offered to prove the child comes within one or more subdivisions of Welfare and Institutions Code section 300 before the child may be declared a dependent of the court (e.g., In re Janet T. (2001) 93 Cal.App.4th 377, 391, 113 Cal.Rptr.2d 163), the juvenile court nonetheless has jurisdiction prior to that time “to make such determinations which are incidentally necessary to the performance of those functions demanded of it by the Legislature pursuant to the Juvenile Court Law.” (In re Lisa R., supra, 13 Cal.3d at p. 643, 119 Cal.Rptr. 475, 532 P.2d 123.) This responsibility is now articulated in Welfare and Institutions Code section 316.2 and rule 1413 of the California Rules of Court. But, even before those provisions were enacted, we held that “a juvenile court is vested with jurisdiction to determine parentage of a minor when that finding is necessary to any ultimate determination with which it is charged.” (Lisa R., supra, 13 Cal.3d at p. 644, 119 Cal.Rptr. 475, 532 P.2d 123.)
D
Having exhausted Heriberto‘s challenges to the juvenile court‘s declaration оf Paul‘s presumed fatherhood, we may now address his objections to the juvenile court‘s adjudication of the dependency petition. Once again, Heriberto claims he had a statutory and constitutional right to be present at this proceeding. The Court of Appeal rejected the constitutional claim but agreed with Heriberto that Penal Code section 2625, subdivision (d) granted him an “absolute right” to be present at the jurisdictional hearing. Holding that the juvenile court had acted “in excess of its jurisdiction” by proceeding in Heriberto‘s absence, the Court of Appeal reversed the judgment and remanded for further proceedings.
In reversing that part of the judgment, the Court of Appeal focused on the word “or” in Penal Code section 2625, subdivision (d)‘s admonition that no dependency petition may be adjudicated without the physical presence of “`the prisoner or the prisoner‘s attorney‘” and determined that “the word `or’ in the sentence under consideration must be construed in the conjunctive sense to mean `and.‘” Reading the word “or” in its conjunctive sense, the Court of Appeal concluded that both the prisoner and the prisoner‘s attorney must be present before the juvenile court may adjudicate a dependency petition. We agree with the Court of Appeal that the statute requires both the prisoner and the prisoner‘s attorney be present. We disagree, however, that the violation here deprived the juvenile court of jurisdiction to adjudicate the petition. We instead apply our familiar harmless-error analysis and find that Heriberto, who had already been convicted of the rape at the time of the hearing, was not prejudiced.
We begin with the text of the statute. Penal Code section 2625, subdivision (d) states in relevant part: “Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner‘s desire to be present during the court‘s proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner‘s production before the court.... [N]o petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner‘s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” (Italics added.)
DCFS argues, with some force, that a conjunctive construction of the word “or” renders superfluous the words “or the prisoner‘s attorney” in the statute, since it
In construing statutes, we must rely on “`“`the usual, ordinary import of the language employed in framing them.‘“`” (Phelps v. Stostad (1997) 16 Cal.4th 23, 32, 65 Cal.Rptr.2d 360, 939 P.2d 760.) The “`ordinary and popular‘” meaning of the word “or” is well settled. (Houge v. Ford (1955) 44 Cal.2d 706, 712, 285 P.2d 257.) It has a disjunctive meaning: “In its ordinary sense, the function of the word `or’ is to mark an alternative such as `either this or that.‘” (Ibid.) We have also recognized that the word may have a conjunctive meaning. But, as we have long stated, “[r]esort to such unnatural construction of the word `or’ is sanctioned only when such construction is found necessary to carry out the obvious intent of the Legislature in a statute or the obvious intent of the parties in a contract, when such intent may be gleaned from the context in which the word is used.” (Ibid.) That intent appears in the legislative history.
The language currently found in Penal Code section 2625, subdivision (d) was added to the Penal Code in 1976. (Stats.1976, ch. 1376, § 2, p. 6262.) According to one legislative analysis, “[t]he purpose of” subdivision (d) “is to ensure that prisoner-parents have the opportunity to be present at proceedings ... where taking away custody [and] control of their child(ren), on a temporary or permanent basis, is being considered.” (Sen. Com. on Judiciary, Background Information to Assem. Bill No. 4354 (1975-1976 Reg. Sess.).) Another analysis explained that subdivision (d) “prohibit[s] ... proceedings” in dependency cases “without the presence of the prisoner-parent, a knowing waiver of appearance, or an affidavit from the superintendent or representative of the institution that the prisoner does not want to attend the hearing.” (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 4354 (1975-1976 Reg. Sess.) May 26, 1976.) Still another analysis explained that under subdivision (d), a dependency case “can not be disposed of unless the prisoner is either physically present in court, represented by counsel or unless he has waived his right to appear.” (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 4354 (1975-1976 Reg. Sess.) as amended June 2, 1976, p. 1.) This last analysis also explained that “the termination of parental rights is a matter of utmost concern to all parties and that the ... presence of all parties is desirable.” (Ibid.) These materials reveal a strong legislative interest in enabling the prisoner to attend the hearing, an interest that would be undermined by interpreting the statute to make the attorney‘s presence sufficient in every case.
To interpret the statute to require only the presence of the attorney would also undermine the legislative goal of ensuring that prisoners actually receive notice of the proceeding. Penal Code section 2625, subdivision (b) requires the court to order notice of a qualifying dependency proceeding to be “transmitted to the prisoner.” According to one legislative analysis, the Legislature added section 2625, subdivision (d)‘s waiver requirement in 1976 to “[e]nsure that adequate notice is [actually] given.
We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se. This practice derives from article VI, section 13 of the California Constitution, which provides: “No judgment shall be set aside, or new trial granted, in any cause ... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” The Court of Appeal reasoned that this statutory violation was reversible per se because, by proceeding in Heriberto‘s absence, the juvenile court acted in excess of jurisdiction. We disagree.
A court acts in excess of jurisdiction “where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no `jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942 (Abelleira).) Whether an act is in excess of jurisdiction or is merely statutory error is defined by the Constitution, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis. (Abelleira, supra, at p. 291, 109 P.2d 942.) In this case, where Heriberto‘s presence was neither constitutionally required nor mandated by our rules, we must examine the statute to determine whether the Legislature intended it to be jurisdictional.
At the outset, we observe that we have rarely — if ever — found a statutory mandate to be jurisdictional when, as here, the mandate itself provides that it may be waived. (Cf. Abelleira, supra, 17 Cal.2d at pp. 288-289, 109 P.2d 942; Newman v. County of Sonoma (1961) 56 Cal.2d 625, 627, 15 Cal.Rptr. 914, 364 P.2d 850.) Nothing in the text of the statute indicates the Legislature intended a different result here. Rather, it appears the Legislature intended merely to grant the prisoner a statutory right to attend the proceedings.
An examination of the statutes governing a defendant‘s appearance at a criminal trial is therefore instructive, since Heriberto‘s denial of his right to be present under Penal Code section 2625 can reasonably be analogized to the denial of a criminal defendant‘s right to be present at trial under Penal Code sections 977 and 1043, which similаrly mandate the defendant‘s presence at trial unless a waiver is submitted. (See People v. Gutierrez (2003) 29 Cal.4th 1196, 130 Cal.Rptr.2d 917, 63 P.3d 1000.) Despite the statutory mandate in sections 977 and 1043, we have regularly applied a harmless-error analysis when a defendant has been involuntarily absent from a criminal trial. (E.g., People v. Riel (2000) 22 Cal.4th 1153, 1196, 96 Cal.Rptr.2d 1, 998 P.2d 969 [“because this nonwaivable right is statutory and not constitutional, error is reversible only if it is reasonably probable the result would have been more favorable to defendant absent the error“]; People v. Ayala (2000) 24 Cal.4th 243, 268-269, 99 Cal.Rptr.2d 532, 6 P.3d 193; People v. Bolin (1998) 18 Cal.4th 297, 325, 75 Cal.Rptr.2d 412, 956 P.2d 374.) We do not believe the Legislature intended a different result in the analogous circumstance here, when a prisoner is involuntarily absent from a dependency proceeding. (Cf. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 120-122, 101 Cal.Rptr. 745, 496 P.2d 817.)
Our conclusion is bolstered by the strong countervailing interest, expressed by the Legislature itself, that dependency actions be resolved expeditiously. (
Independently of any statutory claim, Heriberto also contends that his absence from the jurisdictional and dispositional hearing denied him due process, but he offers no argument beyond that we have already rejected in part A., ante. The relevant issues involved in the dependency action had been explored in reports filed months before the hearing; the juvenile court had granted a lengthy continuance to permit Heriberto to respond to those points and conduct discovery; and the court had advised counsel to consider having Heriberto file a declaration. (Cf. Axsana S., supra, 78 Cal.App.4th at p. 270, 92 Cal.Rptr.2d 701.) Heriberto, however, chose not to submit such a declaration. His attorney made no offer of proof of the testimony Heriberto allegedly wanted to present. Nor did his attorney present the live testimony of other witnesses, such as those witnesses he had included on his witness list. In fact, Heriberto has never identified—whether by way of a petition for modification (
We observe as well that no denial of due process has been found where the prisoner-parent
DISPOSITION
The judgment of the Court of Appeal is reversed to the extent it reversed the order determining Jesusa V. to be a dependent child of the court. In all other respects, the judgment is affirmed.
WE CONCUR: GEORGE, C.J., BROWN and MORENO, JJ.
Dissenting Opinion by KENNARD, J.
In this case, a county agency petitioned the juvenile court to have a minor child declared a dependent of the court. Two men met the statutory definition of being the child‘s presumed father. One of the men, who was in jail at the time, was the child‘s undisputed biological father; the other was married to the child‘s mother when the child was born. After scheduling a paternity hearing, the court ordered the incarcerated biological father transported to court for the hearing. When that did not occur, the court nevertheless proceeded with the hearing, ruling that the mother‘s husband was the child‘s legal father and declaring the child a dependent of the court. The majority holds that the biological father had no right to be at the paternity hearing, and that legally he is not the child‘s father. I disagree on both points.1
I
Jesusa V. was born in 1999. Her mother, also named Jesusa, was married to Paul B. and had five other children by him, but they had separated before Jesusa‘s birth and Heriberto O. wаs Jesusa‘s biological father. An unusual living arrangement evolved after Jesusa‘s birth: Jesusa and her mother both lived with Heriberto during the week and with Paul and the other children on weekends. The mother and Heriberto had a tempestuous relationship.
Before Jesusa‘s second birthday, Heriberto was arrested for raping the mother. The Los Angeles County Department of Children and Family Services petitioned the juvenile court to declare Jesusa a dependent of the court. The court appointed counsel to represent Heriberto, who denied the allegations in the dependency petition and asserted that he, not Paul, qualified as Jesusa‘s legal father. The court scheduled a paternity hearing and ordered the deputies at the county jail, where Heriberto was incarcerated, to transport him to court for the hearing.
Heriberto, however, never made it to the paternity hearing. Although no evidence was presented as to the reason for his absence, it appears that Heriberto was not transported to court because he was no longer in county jail but was in state prison: This court has taken judicial notice of records showing that he had entered a plea of no contest to the rape. The juvenile court, over the objection of Heriberto‘s
At the jurisdictional hearing, none of the parties was personally present: Jesusa‘s mother, distraught at the outcome of the paternity hearing, had walked out of the courtroom, followed by Paul. The court ruled that because it had decided that Heriberto was not Jesusa‘s legal father but a “mere biological father,” he was “not even entitled to notice and an opportunity to be heard.” Because the attorneys representing Paul and the mother did not challenge the allegations in the dependency petition, the court found them true. It then turned to the question of disposition. It ordered Jesusa placed with Paul, allowing the mother to have unmonitored visits, and it forbade Heriberto from having any contact with Jesusa.
Heriberto appealed. The Court of Appeal affirmed the juvenile court‘s order declaring Paul to be Jesusa‘s legal father, but it reversed the order sustaining the dependency petition, holding that the court lacked jurisdiction to adjudicate the dependency petition in Heriberto‘s absence.
II
The majority here upholds the juvenile court‘s ruling declaring Paul to be Jesusa‘s legal father.
I disagree.
I begin by briefly summarizing the pertinent parts of California‘s complex statutory scheme governing paternity adjudications. Paternity disputes are governed by a conglomeration of three sets of laws: The Uniform Parentage Act (
When, at a paternity hearing, the court finds that two men are presumed fathers, the court must find paternity in favor of the father whose presumption “is founded on the weightier considerations of policy and logic.” (
The juvenile court may well have been right that Paul rather than Heriberto was likely to be a better parent to Jesusa. That, however, is not dispositive under subdivision (b) of
As noted earlier,
The majority insists that sections 7541 and 7554 “have no application here” (maj. opn., ante, 10 Cal.Rptr.3d at p. 226, 85 P.3d at p. 20) because they merely describe who prevails when a blood test shows a husband‘s or an alleged father‘s lack of paternity. True, no blood tests were ordered here. But that was because such tests were unnecessary, as the parties agreed that Heriberto, not Paul, was Jesusa‘s biological father.
In any event, the majority acknowledges that dispositive here is what the Legislature meant when it said, in subdivision (b)
In upholding the trial court‘s contrary ruling, the majority relies on In re Nicholas H. (2002) 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932. That case is distinguishable, however. There, we held that when a presumed father admits that he is not the child‘s biological father, the trial court may still decide that he is the child‘s father under
In upholding the juvenile court‘s paternity ruling against Heriberto, Jesusa‘s biological father, the majority violates his due process rights as a biological father. In Adoption of re Kelsey S. (1992) 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216 (Kelsey), a unanimous opinion by the same justice who has authored today‘s majority opinion, this court held that when a biological father demonstrates “a full commitment to his parental responsibilities” (id. at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216), the due process clause of the federal Constitution bars the state from terminating his parental rights “on nothing more than a showing of a child‘s best interest” (ibid.), the test used by the juvenile court in this case.
The majority cites two grounds for rejecting Heriberto‘s due process claim. Neither is persuasive.
First, the majority cursorily asserts that the juvenile court did not terminate biological father Heriberto‘s parental rights when it resolved paternity in favor of Paul. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 221, 85 P.3d at p. 15.) To the contrary! A court‘s paternity decision is “determinative for all purposes” except in criminal prosecutions for failure to provide child support. (
Second, the majority insists that Heriberto is not entitled to the due process protection articulated in Kelsey, supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216, because the record does not show that he took any “legal steps to formalize his relationship to the child.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) As I explain below, this analysis is faulty.
Although the majority is right that Heriberto presented no evidence that he had tried to “formalize his relationship” with Jesusa, his biological daughter, that is only because the juvenile court denied him the opportunity to do so. Heriberto‘s lawyer asked the court to continue the paternity hearing so Heriberto could be present and testify about the “formal steps” he had
Moreover, even if Heriberto had taken no “legal steps to formalize his relationship” (maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16) with Jesusa, there is nothing in Kelsey to suggest that he forfeited his due process rights because of such inaction. What Kelsey does say is this: “If an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities — emotional, financial, and otherwise — his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.” (Kelsey, supra, 1 Cal.4th at p. 849, 4 Cal.Rptr.2d 615, 823 P.2d 1216.) Here, Heriberto publicly acknowledged Jesusa as his child; he took her into his home and raised her for almost two years; there is no evidence that he did not treat her in a loving manner.
Heriberto‘s rape of Jesusa‘s mother is powerful evidence of his unfitness as a parent. It was, therefore, entirely appropriate for the county agency to seek to remove Jesusa from his custody and to have her made a dependent of the juvenile court. But the juvenile court did not consider the rape when making its paternity determination. Nor did it base that determination on a finding that Heriberto was an unfit parent. Rather, the court decided that question based on Jesusa‘s best interests, a standard that violates our holding in Kelsey, supra, 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216. There, as I noted above, we held that a court cannot terminate a biological father‘s parental rights absent a showing of the father‘s unfitness as a parent.
III
Did the incarcerated Heriberto have a right to be transported to the paternity hearing? Yes, he did.
In “any proceeding brought under Section 300 of the Welfare and Institutions Code, where the proceeding seeks to adjudicate the child of a prisoner a dependent child of the court ... the superior court ... shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner.” (
Here, the Los Angeles County Department of Children and Family Services petitioned the juvenile court to declare Heriberto‘s biological daughter Jesusa a dependent child of the court. The paternity hearing was a crucial part of the dependency proceedings, and Heriberto told the court that he wanted to be present at the hearing. By holding the hearing in Heriberto‘s absence, the court violated
Insisting that Heriberto did not have that right, the majority asserts that “section 2625 requires a court to order a prisoner-parent‘s temporary removal and production before the court only ‘where the proceeding seeks ... to adjudicate the child of a prisoner a dependent child.‘” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 212, 85 P.3d at p. 29.) This adjudication was not made, the majority asserts, at the paternity hearing in this case. But the paternity hearing here was a crucial part of the entire dependency proceeding, a proceeding that did “seek[ ] to adjudicate the child of a prisoner a dependent child.” (
IV
As explained above, the juvenile court erred when it ruled that Heriberto, Jesusa‘s undisputed biological father, had no right to be personally present at the paternity hearing, and when it decided at that hearing that Paul, who was married to Jesusa‘s mother when Jesusa was born, rather than Heriberto, was Jesusa‘s legal father. The court‘s erroneous paternity determination also had the effect of wrongly denying Heriberto his right to appear, either in person or through counsel, at the jurisdictional and dispositional hearings that immediately followed the paternity determination: Ruling that Heriberto was not Jesusa‘s legal father, the court stated he was “not even entitled to notice and an opportunity to be heard” at those proceedings. I would reverse the judgment of the Court of Appeal and remand the matter to that court, with directions to reverse the juvenile court‘s judgment in its entirety.
I CONCUR: WERDEGAR, J.
Dissenting Opinion by CHIN, J.
Only 10 years ago, in a nearly unanimous decision construing the same enactment at issue here — California‘s Uniform Parentage Act (UPA) (
I dissent from the majority‘s decision to abandon our prior construction of the UPA. No statute compels the majority‘s conclusion. On the contrary, the majority‘s
I also dissent from the majority‘s conclusion that when the juvenile court determined paternity in Heriberto‘s absence, it did not violate Heriberto‘s statutory right under
On the particular facts of this case, the result of the majority‘s conclusion is unobjectionable: Jesusa will remain in Paul‘s care and Heriberto will have no legal access to her. However, as we have held, questions of parentage are legally separate from questions of custody. (Johnson, supra, 5 Cal.4th at p. 93, fn. 10, 19 Cal.Rptr.2d 494, 851 P.2d 776.) Concerns that Heriberto is not an appropriate father for Jesusa can, and should, be addressed through our laws on custody and termination of parental rights, not through an initial paternity determination. Applying those laws, my construction will ultimately produce the same result in this case without distorting the statutes governing paternity determinations and rendering them unconstitutional.
Moreover, the majority‘s rule applies not just in this case, but in all cases involving competing paternity claims of men who qualify under
I. HERIBERTO‘s BIOLOGICAL PATERNITY CONTROLS.
As the majority explains, this case involves a clash of competing presumptions under
The UPA provides that the presumptions for which Heriberto and Paul qualified are “rebuttable presumption[s]” that “may be rebutted in an appropriate action only by clear and convincing evidence.” (
In answering these questions, we must construe the statutes not “in isolation,” but “‘with reference to the entire scheme of law of which [they are] part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” (People v. Pieters (1991) 52 Cal.3d 894, 899, 276 Cal.Rptr. 918, 802 P.2d 420 (Pieters).) Moreover, if
A. The Statutory Scheme and Legislative Intent.
The relevant statutes and legislative history, most of which the majority disregards, clearly demonstrate the Legislature‘s intent to make established biological paternity determinative as between competing presumed fathers. Under California‘s Uniform Act on Blood Tests to Determine Paternity (
The implications of these provisions for the case now before us are unmistakable. Given the undisputed fact that Heriberto is Jesusa‘s biological father, genetic tests done pursuant to
The paternity determination should be no different in this case simply because testing was not actually performed. At the very first hearing, Jesusa‘s mother stated that Heriberto is the biological father, and no one has ever contended otherwise. The juvenile court expressly “made a finding that [Heriberto] is the biological father.” Where, as here, the parties all agree as to who the biological father is, we should not insist that they go through pointless and invasive test procedures that would involve considerable expense and would significantly delay resolution of dependency actions. As the majority notes, such delays would be contrary to the Legislature‘s “goal” that dependency actions “be resolved expeditiously.” (Maj. opn.,
Although the UPA does not expressly provide that one presumed father‘s established biological paternity necessarily rebuts the presumption of another presumed father under subdivision (a) of
These same provisions alternatively show that, in addition to rebutting paternity presumptions, biological paternity should be given controlling weight in determining which unrebutted presumption is, “on the facts ... founded on the weightier considerations of policy and logic....” (
The majority‘s conclusion also defeats the Legislature‘s intent in establishing the “rebuttable presumption ... of paternity” based on biology that is currently found in
In rejecting my conclusion, the majority misstates the legislative history. The Legislature‘s expressly declared “purpose” in enacting
This conclusion is consistent with a critical fact that the majority‘s analysis ignores: whereas the
Nor does the majority explain how, under its analysis, a juvenile court that is “obliged” to consider biological paternity even can take this “factor [ ]” into account (maj. opn., ante, 10 Cal.Rptr.3d at p. 220, 85 P.3d at p. 15) in cases where biological paternity is not admitted. Under the majority‘s view, how does the juvenile court determine biological paternity where it is not admitted? If through genetic tests performed pursuant to
Also supporting my conclusion is the evolution and legislative history of the “conclusive[ ]” presumption under
The legislative history regarding these amendments is revealing. Regarding the 1980 legislation that first made the conclusive presumption rebuttable by the husband, one legislative analysis explained: “Under the Uniform Parentage Act [citation], a man is presumed to be the natural father of a child if he comes within the purview of Evidence Code [former] Section 621 or meets any of the other conditions specified in Civil Code [former] Section 7004 [now,
These statements demonstrate several important things. First, they show the Legislature‘s express recognition that the conclusive presumption now found in
The facts here closely match the factual scenario the Legislature specifically had in mind when it gave presumed fathers standing to rebut the otherwise conclusive UPA presumption of a husband‘s paternity under
The majority‘s response on this point is erroneous. Isolating a single phrase from the legislative reports — “‘the opportunity to establish paternity‘” — the majority asserts that “[a] mere opportunity for the unwed biological father to establish paternity hardly supports” the conclusion “that biology is necessarily determinative.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 228, 85 P.3d at p. 21.) However, as I have shown, a review of the entire legislative history, rather than a single phrase taken out of context, demonstrates the Legislature‘s intent to make biology determinative where a biological father who also is a presumed father under
The majority is incorrect that my construction of these statutes renders part of
On the other hand, the majority‘s construction renders meaningless all of subdivision (b) of
The majority‘s construction also produces absurd results. As noted, the “conclusive” presumption under
The majority‘s attempt to explain these results simply demonstrates the absurdity of its construction. The majority asserts that it is incorrect to “compar[e]” the “presumption in section 7540” to the other
The majority also errs in suggesting that the other section 7611 presumptions are unlike the section 7540 presumption in that they “were `“established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied.“‘” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 225, 85 P.3d at p. 19.) As we have explained, the section 7540 presumption and the other section 7611 presumptions all serve the same public policy. (In re Nicholas H. (2002) 28 Cal.4th 56, 65, 120 Cal.Rptr.2d 146, 46 P.3d 932 (Nicholas H.); Estate of Cornelious (1984) 35 Cal.3d 461, 465, 198 Cal.Rptr. 543, 674 P.2d 245 (Cornelious).) Finally, the majority‘s analysis is not aided by its observation that, “unlike the section 7540 presumption,” the other section 7611 presumptions “may be rebutted `only by clear and convincing evidence.‘” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 225, 85 P.3d at p. 19.) The standard of proof for rebutting the section 7540 presumption is actually higher; that presumption is overcome only if ”all the experts” agree that “the husband is not the father.” (
My conclusion that, under our current statutory scheme, one presumed father‘s biological paternity necessarily rebuts another man‘s presumption is consistent with the law as it existed before the Legislature adopted the UPA in 1975. In Kusior, we considered the rebuttable presumption under Civil Code former sections 194 and 195 in favor a mother‘s husband where the child was born within 10 months of the dissolution of marriage. (Kusior, supra, 54 Cal.2d at p. 607, 7 Cal.Rptr. 129, 354 P.2d 657.) Blood tests taken “pursuant to” the California Uniform Act on Blood Tests to Determine Paternity — specifically, Code of Civil Procedure former section 1980.3, which was substantively identical to the first sentence of
Indeed, under California law before the UPA‘s passage, evidence other than tests — including an admission of biological paternity — showing that a presumed father was not the biological father conclusively rebutted a presumption. In Baker v. Baker (1859) 13 Cal. 87, 96, 1859 WL 960 (Baker), the evidence showed that a woman had admitted to her brother that her husband was not her child‘s biological father. We first held that, absent evidence of collusion, the admission was admissible because “the public can have no interest in suppressing the truth.” (Id. at p. 94.) We then held that the woman‘s admission “placed” her child‘s paternity “upon a stranger beyond a doubt” and, thus, necessarily “overc[a]me” the husband‘s rebuttable presumption. (Id. at p. 101.) Here, of course, not only does Jesusa‘s mother concede Heriberto‘s biological paternity, both Heriberto and Paul do so as well. Moreover, there is not even a hint of collusion in this case. Thus, under California law before passage of the UPA, Heriberto‘s conceded biological paternity would have conclusively and necessarily rebutted Paul‘s presumption. (See also Anderson v. Anderson (1931) 214 Cal. 414, 417, 5 P.2d 881 [because evidence established biological paternity by “a stranger ... beyond question,” husband‘s presumption “no longer obtains“]; Hughes v. Hughes (1954) 125 Cal.App.2d 781, 784-787, 271 P.2d 172.)
Nothing suggests that, in adopting the UPA, the Legislature intended to alter the determinative effect of biological paternity under California law in cases involving competing paternity claims. The UPA‘s purpose was not to enact fundamental changes regarding the role of biology in the law of paternity, but was simply to replace the concept of legitimacy with the concept of the parent and child relationship and to specify a procedure for establishing that relationship. (Legis. Counsel‘s Dig., Sen. Bill No. 347 (1975-1976 Reg. Sess.) 2 Stats.1975, Summary Dig., p. 344; Johnson, supra, 5 Cal.4th at pp. 88-89, 19 Cal.Rptr.2d 494, 851 P.2d 776.) According to one legislative analysis, “[a]ll of the presumptions established by [the UPA] correspond[ed] to current law.” (Sen. Com. on Judiciary, analysis of Sen. Bill No. 347 (1975-1976 Reg. Sess.) May 8, 1975, pp. 15-16, italics added.) For example, the rebuttable presumption at issue in Kusior, which we held was conclusively rebutted by tests showing that the presumed father was not the biological father, was the same rebuttable presumption now contained in
Indeed, the very language of the UPA demonstrates that the majority‘s construction is inconsistent with the Legislature‘s intent. As noted above, the UPA specifies a procedure for establishing “[t]he parent and child relationship” (
Relevant legislative history confirms that the Legislature understood and used the term “natural father” in the UPA in accordance with its ordinary meaning, that is, “biological father.” As explained above, in 1980, the Legislature first made the “conclusive[ ]” presumption under
This conclusion is consistent with our analysis in Johnson. There, we had to resolve the competing maternity claims of two women: one who gave birth to the child and another who had provided the egg that was implanted into the first. (Johnson, supra, 5 Cal.4th at p. 87, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We first reasoned that the UPA, which “applies to any parentage determination,” governed the issue. (Id. at p. 89, 19 Cal.Rptr.2d 494, 851 P.2d 776.) We then reasoned that, because both women had a biological claim to maternity, “the [UPA] presumptions contained in [section 7611] do not apply.” (Johnson, supra, 5 Cal.4th at p. 91, 19 Cal.Rptr.2d 494, 851 P.2d 776.) These presumptions, we explained, “describe situations in which substantial evidеnce points to a particular man as the natural father of the child. [Citation.]” (Ibid., italics added.) We then held that, because both women had established a biological basis for their claim, “there [was] no need to resort to an evidentiary presumption to ascertain the identity of the
Our analysis in Johnson confirms that, under the UPA, in resolving competing claims of parentage — as opposed to custody — biological parentage controls over a mere presumption that is not based on biology, notwithstanding the child‘s best interests. Under that analysis, Paul‘s UPA presumption does not apply in this case because Heriberto is Jesusa‘s undisputed biological father; if, as we held in Johnson, the UPA presumptions do not apply when both claimants establish biological parentage, then certainly the undisputed biological paternity of one presumed father necessarily rebuts the presumption of another presumed father. Concerns that Heriberto is not an appropriate father for Jesusa should be addressed, not through this paternity determination, but through our laws on custody and termination of parental rights. (See In re Marriage of Moschetta, supra, 25 Cal.App.4th at p. 1226, 30 Cal.Rptr.2d 893 [
The majority‘s discussion of Johnson is erroneous. The majority asserts that Johnson is not pertinent here because section 7612 contains a “directive” that “the child‘s best interests should be considered in making parentage decisions.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 229, 85 P.3d at p. 22.) The majority is incorrect;
In rejecting my construction of section 7612, subdivision (a), the majority, contrary to governing principles, expressly declines to “construe the [statutory] scheme” of which section 7612 is a part. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 227, 85 P.3d at p. 20.) The majority also fails to consider most of the legislative history I have discussed, and offers no legislative history supporting its own construction. Nor does the majority consider the common and ordinary meaning of the term “natural father” or offer any alternative meaning of that phrase. Finally, the majority disregards Johnson, which specifically construed the UPA in the context of competing parentage claims. Instead, in construing
For several reasons, the majority‘s reliance on Nicholas H. is misplaced. First and foremost, Nicholas H. actually supports my conclusion that, in this case of competing paternity claims, Heriberto‘s conceded biological paternity necessarily rebuts Paul‘s presumption. The “question” we faced in Nicholas H. was “whether a presumption arising under section 7611[ ] is, under section 7612[, subdivision (a),] necessarily rebutted when the presumed father ... admits that he is not the biological father of the child.” (Nicholas H., supra, 28 Cal.4th at p. 58, 120 Cal.Rptr.2d 146, 46 P.3d 932, italics added.) We held that such an admission does not necessarily rebut a presumption where the “presumed father is providing a loving home for” the child and the child‘s “biological father ... has shown no interest in” establishing his paternity or accepting “the privilege and responsibility of fathering” the child. (Id. at pp. 58-59, 120 Cal.Rptr.2d 146, 46 P.3d 932.) “Rather,” we explained, the kind of action “the Legislature had in mind” where a section 7611 would be rebutted is one “in which another candidate is vying for parental rights and seeks to rebut a section 7611[ ] presumption in order to perfect his claim....” (Nicholas H., supra, 28 Cal.4th at p. 70, 120 Cal.Rptr.2d 146, 46 P.3d 932.) Of course, the case now before us is precisely the kind of case that, according to Nicholas H.,“the Legislature had in mind” as one in which a section 7611 presumption would be rebutted by another man‘s biological paternity; Heriberto, who is both the biological father and a presumed father in his own right, “is vying for parental rights and seeks to rebut” Paul‘s section 7611 presumption “in order to perfect his
Relevant legislative history confirms that the distinction we drew in Nicholas H. — between cases where the biological father seeks to establish his paternity claim and cases where he does not — correctly reflects the Legislature‘s intent. As explained above, when the Legislature extended standing to contest section 7540‘s conclusive presumption to a “presumed father” under section 7611 and to “the child,” it did so only “for purposes of establishing [the presumed father‘s] paternity.” (Stats.1990, ch. 543, § 2, p. 2855 [amending Evid.Code, former § 621, now
Nicholas H. supports my conclusion in another important respect. The child in Nicholas H. was more than four years old when the dependency petition was filed (Nicholas H., supra, 28 Cal.4th at pp. 59-60, 120 Cal.Rptr.2d 146, 46 P.3d 932), and, in reaching our conclusion, we quoted the following statement from Cornelious, supra, 35 Cal.3d at pages 465-466, 198 Cal.Rptr. 543, 674 P.2d 245: “`[I]n the case of an older child [over two years of age] the familial relationship between the child and the man purporting to be the child‘s father is considerably more palpable than the biological relationship of actual paternity.‘” (See Nicholas H., supra, 28 Cal.4th at p. 65, 120 Cal.Rptr.2d 146, 46 P.3d 932.) This quotation from Cornelious was taken
Beyond summarizing Nicholas H., the majority‘s actual analysis under that decision is as unconvincing and conclusory as it is brief. After repeating Nicholas H.‘s observation that section 7612, subdivision (a), provides that a presumption “may be rebutted in an appropriate action,” the majority asserts: “This indicates that the Legislature did not envision an automatic preference for biological fathers, even if the biological father has come forward to assert his rights.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 217, 85 P.3d at p. 12.) The majority‘s logic is faulty; the mere fact that section 7612, subdivision (a), makes the presumptions rebuttable “in an appropriate action” does not indicate a legislative intent not to make biology determinative where “the biological father has come forward to assert his rights.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 217, 85 P.3d at p. 12.) On the contrary, as I have explained, in Nicholas H., we stated that this is precisely the factual scenario that the Legislature envisioned as “`an appropriate action‘” for rebutting the presumption. (Nicholas H., supra, 28 Cal.4th at p. 70, 120 Cal.Rptr.2d 146, 46 P.3d 932.) Moreover, as I have also explained, the overall statutory scheme and the relevant legislative history demonstrate the Legislature‘s intent to make biology controlling in paternity disputes between competing presumed fathers, at least with respect to young children like Jesusa.
The majority next asserts that, “`if the Legislature had intended that a man who is not a biological father cannot be a presumed father under section 7611, it would not have provided for such weighing, for among two competing claims for presumed father status under section 7611, there can
For the same reason, the majority errs in asserting that if the Legislature “had intended to restrict the weighing process under
Nor is the majority correct that section 7575 supports its conclusion. According to the majority,
The majority‘s analysis is both unpersuasive and incorrect. It is unpersuasive because it ignores the fact that blood test evidence showing that the tested man is not the father does necessarily rebut the presumption of a husband who is “conclusively presumed” to be the father under section 7540. (
The majority is also incorrect in asserting that not “a single case” supports
On the other hand, upon examination, the Court of Appeal decisions on which the majority relies turn out not to be “weight[y]” at all. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 216, 85 P.3d at p. 11.) In Steven W., the court discussed only subdivision (b) of what it is now section 7612 in concluding that one man‘s presumption was controlling; it did not even consider whether, under subdivision (a) of section 7612, one presumed father‘s biological paternity necessarily rebuts the other man‘s presumption. (Steven W., supra, 33 Cal.App.4th at pp. 1115-1117, 39 Cal.Rptr.2d 535.) Thus, it provides no support for the majority‘s construction of the latter subdivision. In In re Kiana A. (2001) 93 Cal.App.4th 1109, 113 Cal.Rptr.2d 669, the entire discussion of the significance of biological paternity was dicta; before opining on this issue, the court held that biological paternity had not been established in the juvenile court and that the man asserting his biological paternity could not raise his “untimely claim” for the first time on appeal. (Id. at p. 1118, 113 Cal.Rptr.2d 669.) Moreover, the court‘s dicta on this issue contained no analysis other than citing Steven W. and citing the language of section 7612, subdivision (a). (Kiana, supra, 93 Cal.App.4th at p. 1118-1119, 113 Cal.Rptr.2d 669.) Finally, like Nicholas H. and unlike the case now before us, both Steven W. and Kiana involved a child who was more than two years old when the paternity issue arose. (Kiana, supra, 93 Cal.App.4th 1109, 113 Cal.Rptr.2d 669 [child over 12 years of age]; Steven W., supra, 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535 [almost 3-year-old child].) In both cases, the courts relied heavily on this fact in reaching their conclusion. (Kiana, supra, 93 Cal.App.4th at pp. 1119-1120, 113 Cal.Rptr.2d 669; Steven W., supra, 33 Cal.App.4th at pp. 1117-1118, 39 Cal.Rptr.2d 535.) Thus, these cases provide no substantial support for the majority‘s construction.21
The majority‘s analysis is equally faulty with respect to its conclusion that a court need not give “determinative weight” to biology in determining under subdivision
Instead of analyzing California‘s statutory scheme, the majority relies on decisions from other states. Specifically, the majority cites decisions from Colorado, Hawai‘i, Minnesota, and Nevada in which courts purportedly “declined to make biology determinative under their analog to section 7612 when confronted by competing presumptions of paternity.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 219, 85 P.3d at p. 14.)
The non-California decisions on which the majority relies do not support the majority‘s conclusion because the statutes they construed are significantly different from California‘s UPA. As explained above, when our Legislature established a presumption based on test results, it excluded that presumption from the UPA‘s weighing process under section 7612 and specifically declared its “intent ... to standardize the process by which paternity is established in order to achieve a greater degree of equity and consistency in paternity determinations.” (Stats.1986 ch. 629, § 1, pp. 2136-2137.) It thus provided clear evidence of its intent to make established biological paternity determinative as to which competing UPA presumption is, ”on the facts ... founded on the weightier considerations of policy and logic....” (
B. Constitutional Considerations
In addition to being inconsistent with the overall statutory scheme and the Legislature‘s intent, the majority‘s conclusion violates the principle that, in interpreting statutes, we should avoid constructions that “raise serious and doubtful constitutional questions.” (Miller, supra, 22 Cal.2d at p. 828, 142 P.2d 297.) Under this principle, “[i]f a statute is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional in whole or in part, or raise serious and doubtful constitutional questions, [we] will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality.... [Citations.] The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.” (Ibid.)
Contrary to this principle, the majority‘s conclusion renders our statutory scheme unconstitutional. In Kelsey, we held that, “if an unwed father promptly comes forward and demonstrates a full commitment to his parental responsibilities — emotional, financial, and otherwise — his federal constitutional right to due process prohibits
The majority‘s attempt to refute this conclusion fails. Initially, the majority confuses and avoids the issue by insisting that the proceedings here merely determined who “the presumed father” is, not who the father is. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 212, 85 P.3d at p. 8.) The majority states that a juvenile court may determine “the identity of a child‘s presumed father” through an action brought under
Nor is the majority correct in stating that a court may determine the identity of “a child‘s presumed father” — as opposed to the child‘s father — under California Rules of Court, rule 1413. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 230, 85 P.3d at p. 23, italics added.) Rule 1413, which is entitled “Paternity,” establishes a juvenile court‘s “duty” in a dependency proceeding “to determine the parentage of” a child — not the child‘s presumed father — if “parentage” has “not otherwise [been] determined.” (Cal. Rules of Court, rule 1413(a), italics added.) It states that if “there has been no prior determination of paternity of the child, the juvenile court may make such a determination.” (Cal. Rules of Court, rule 1413(e), italics added.) As commonly understood, the terms “parentage” and “paternity”
The record fully supports this conclusion. At the hearing where Heriberto first appeared, the court advised that there would “be an issue on April 30th as to determining the paternity.” On April 30, the court announced that it was continuing “the issue as to paternity” to July 17. On July 17, when counsel objected to proceeding in Heriberto‘s absence, the court relayed its understanding “that the issue of paternity would be fully decided on the briefs and argument.” DCFS then argued that the court should “make a finding of paternity or nonfinding of paternity” based on what had already been submitted, and it “urge[d] the court to go ahead and make its finding as to paternity.” Jesusa‘s counsel then set forth her understanding of the court‘s tentative ruling: that both Paul and Heriberto were “eligible for presumed status, but that issues of public policy and logic would determine that [Paul] should be the father that‘s chosen.” (Italics added.) After the court‘s ruling, Jesusa‘s counsel argued: “[I]n the court making a finding that [Paul] is the presumed father, that effectively states that [Heriberto] is not the father. [¶] ... It‘s a finding that he is not the father of this child period, and that [Paul] ... enjoys all the legal rights and responsibilities as a parent to [Jesusa] and not [Heriberto].” The court immediately responded that, as a result of its finding, Heriberto “does not have any legal rights to this child other than being noticed for” a hearing under
Despite Paul‘s status as the legal father under the juvenile court‘s order, the majority insists that Heriberto “retains `parental rights that simply differ in degree [from]‘” Paul‘s rights. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 212, 85 P.3d at p. 212.) According to the majority, actual termination of Heriberto‘s “parental rights requires further proceedings.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.)
The majority is incorrect. Although claiming that Heriberto retains parental rights, the majority identifies not a single right that he retains. Instead, to support its assertion, the majority simply cites Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596 [110 Cal.Rptr.2d 679]. (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 212, 221, 85 P.3d at pp. 8, 16.) However, like the majority, although the court in Francisco made a general statement regarding the rights of a biological father, it did not identify a single right that a biological parent has. (Francisco, supra, 91 Cal.App.4th at pp. 590-595 [110 Cal.Rptr.2d 679].) Moreover, Francisco is completely inapposite; it did not consider whether a biologicаl father retains parental rights after a juvenile courts makes a paternity finding in favor of another presumed father. In Francisco, the court considered the statutory reunification rights in a dependency proceeding of a biological father who was never a presumed father; there was no paternity determination and no presumed father. (Ibid.) It was in this context that the court stated, by way of background, that a biological father has “parental rights that simply differ in degree [from] the parental rights conferred on a presumed father.” (Id. at p. 596 [110 Cal.Rptr.2d 679].) In short, nothing supports
The majority‘s assertion that actual termination of Heriberto‘s “parental rights requires further proceedings” (maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16) is also suspect. Again, as to this issue, the juvenile court‘s paternity finding here is, by statute, “determinative.” (
Finally,
Nor is the majority justified or correct in rejecting Heriberto‘s due process claim based on his purported failure to “execute[] a voluntary declaration of paternity or describe[ ]” on the record “any other steps” he took “to formalize his relationship to” Jesusa. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) In the juvenile court, counsel for Jesusa asserted in her brief that Heriberto had “signed” a “voluntary declaration of paternity.” Regarding other steps that Heriberto may have taken to formalize his relationship, ironically, the lack of evidence in the record the majority cites stems directly from a ruling the majority now affirms: the juvenile court‘s refusal to continue the matter until Heriberto was present. Heriberto‘s counsel requested the continuance specifically so Heriberto could appear to present precisely the kind of evidence the majority says is lacking. As the majority notes (maj. opn., ante, 10 Cal.Rptr.3d at p. 213, 85 P.3d at p. 9), when the juvenile court asked what testimony Heriberto wanted to provide, counsel responded: “the extent in which [he] held out paternity, publicly acknowledged paternity for Jesusa, and the formal steps he went to [to] identify” Jesusa as “his daughter” to “government agencies.” The juvenile court denied the continuance because it found it did “not need” to know “what [Heriberto] ha[d] done with regard to filling out documents with public agencies or government agencies.” The majority affirms that ruling, reasoning thаt Heriberto‘s proposed testimony was “unnecessary” in light of the juvenile court‘s decision to assume that Heriberto qualified as a presumed father. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, 85 P.3d at p. 9.) Having affirmed the denial of the continuance Heriberto sought so he could present this evidence, the majority errs in now rejecting his constitutional claim based on the absence of that very evidence in the record.29
In any event, the majority errs in holding that Heriberto has no constitutional protection absent such a showing. Contrary to the majority‘s analysis, neither Kelsey nor Michael H. supports this conclusion or even suggests that the taking of steps to formalize the paternal role is an absolute prerequisite to constitutional protection. On the contrary, in Kelsey, we identified “prompt legal action to seek custody” as only one of many factors “[a] court should consider.” (Kelsey, supra, 1 Cal.4th at p. 849 [4 Cal.Rptr.2d 615, 823 P.2d 1216].) We more broadly held that, in determining whether a biological father has made the showing necessary to trigger due process protections, a court should not look to any one factor, but “should consider all factors,” including the biological father‘s “conduct both before and after the child‘s birth.” (Ibid.) The majority asserts that Heriberto did less than the father in
After rejecting Heriberto‘s claim that the juvenile‘s court‘s decision unconstitutionally terminated his parental rights, the majority addresses his claim that the juvenile court‘s decision “unconstitutionally interfered with” those rights. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) Based on a purported “balance” of the competing interests, the majority rejects Heriberto‘s “substantive due process” claim. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.)
The majority‘s analysis is incorrect, because it mischaracterizes and incorrectly weights the relevant interests to be balanced. On one side of the scale, the majority places Heriberto‘s “largely abstract interest in being an absent presumed father while he remains in prison.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16.) However, Heriberto‘s interest is hardly abstract; it arises from the period he lived with Jesusa‘s mother during her pregnancy and from the actual parental relationship he developed with Jesusa during the almost two years he lived with her as her father. As previously noted, according to Jesusa‘s mother, Heriberto was “always ... very loving and gentle to” Jesusa during this time. Moreover, the majority takes the short-term, myopic view in focusing only on Heriberto‘s “interest in being an absent presumed father while he remains in prison.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 222, 85 P.3d at p. 16, italics added.) Heriberto will not be in prison forever; as the majority notes, he received “three years in prison” for his rape conviction. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 211, 85 P.3d at p. 7.) This three-year period will end in May 2004, only a few months from now (assuming Heriberto is not released even earlier based on custody credits). We must consider not only Heriberto‘s interest while he remains in prison, but also his interest in being a father after his impending release. The juvenile court‘s paternity determination will seriously interfere with — indeed,
The majority‘s conclusion also raises serious and doubtful constitutional questions with respect to the equal protection clause. In Kelsey, we explained that when a biological father “has come forward to grasp his parental responsibilities, his parental rights are entitled to equal protection as those of the mother.” (Kelsey, supra, 1 Cal.4th at p. 849 [4 Cal.Rptr.2d 615, 823 P.2d 1216], fn. omitted.) Contrary to this principle, under the majority‘s conclusion, the parental rights of a biological father who has made the necessary commitment to his parental responsibilities do not receive the same protection as the parental rights of a biological mother. As explained above, we held in Johnson that, under the UPA, the parentage claim of a woman who has established her biological maternity and who “from the outset intended to be the child‘s mother” cannot be defeated based on the child‘s best interests, even by another woman who also establishes a biological basis for parentage. (Johnson, supra, 5 Cal.4th at p. 93 [19 Cal.Rptr.2d 494, 851 P.2d 776].) Here, the majority holds that a man in the same position — who has established his biological paternity, who moved in with the mother a year before the child‘s birth and intended from the outset to be the child‘s father, and who lived with the child and acted as her father for almost two years after her birth — does not enjoy the same protection; his parentage claim may be defeated if a court concludes that the child‘s best interests are served by recognizing the paternity claim of someone with no biological basis for his claim. Thus, in interpreting the UPA as establishing lesser protection for the rights of a biological father, the majority‘s holding renders our statutory scheme violative of the equal protection clause. As we explained in Kelsey: “We simply do not in our society take children away from their mothers — married or otherwise” — merely because a
C. Policy Considerations
Finally, the majority can offer no persuasive policy basis for adopting a construction that fails to implement the Legislature‘s intent and renders our statutory scheme unconstitutional. As we explained in Johnson, the determination of who a child‘s father is under the UPA — that is, “the determination of parentage” — is separate from the “eventual custody decision [ ]“; “[l]ogically, the determination of parentage must precede, and should not be dictated by, eventual custody decisions.” (Johnson, supra, 5 Cal.4th at p. 93, fn. 10 [19 Cal.Rptr.2d 494, 851 P.2d 776].) As we also explained, basing the parentage determination on “the best interests of the child,” as the majority does, improperly “confuses concepts of parentage and custody.” (Ibid.) If we properly keep these concepts separate, then Heriberto should be found to be Jesusa‘s father under the statutes governing parentage determinations and questions of custody and termination of parental rights should be decided under the “dependency laws” that govern such matters. (Ibid.) If those dependency laws are applied on the facts here, then a juvenile court would surely deny Heriberto custody of Jesusa and terminate his parental rights. (See
As this discussion demonstrates, the majority errs in asserting that, under my construction, “courts must ignore the child‘s best interests in a dependency proceeding.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 226, 85 P.3d at p. 20.) Under my construction, and as we held in Johnson, courts must consider the child‘s best interests in a dependency proceeding in determining termination and custody issues, not in determining parentage under the UPA. Moreover, as the majority observes, paternity determinations occur in contexts other than dependency proceedings. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8, fn. 2.) To paraphrase the majority, our construction of the paternity statutes should not be driven by “the fortuity that a dependency petition is pending.” (Ibid.)
The majority is also incorrect regarding the effect of my construction where a child is ”the product of rape.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 229, fn. 11, 85 P.3d at p. 22, fn. 11.) The majority asserts that, under these circumstances, my construction requires a court “to favor the biological father over any other presumed father.” (Ibid.) However, this assertion overlooks the fact that, under my construction, even though a biological father qualifies as a presumed father, his parental rights wоuld surely be terminated where the child is the product of rape, and another presumed father would be able to obtain custody and parental rights through adoption. The majority‘s assertion also overlooks the fact that my approach is precisely the approach the Legislature, through its statutes, has dictated where a child is the product of rape and the rapist qualifies under
So, one may ask, if my construction and the majority‘s would produce the same result here, then does any of this matter? Yes; because, as we held only 10 years ago, courts applying the UPA should not “decide parentage based on the best interests of the child,” and should keep parentage and custody decisions separate (Johnson, supra, 5 Cal.4th 84 at p. 93, fn. 10 [19 Cal.Rptr.2d 494, 851 P.2d 776]); because, as we also cautioned 10 years ago, deciding parentage on the basis of the child‘s best interests “raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy” (ibid.); because we held in Kelsey that the “federal constitutional right[s]” of biological fathers like Heriberto “prohibit[ ]” termination of their parental relationship absent a showing of their “unfitness” as parents (Kelsey, supra, 1 Cal.4th at p. 849 [4 Cal.Rptr.2d 615, 823 P.2d 1216]); and because the majority is announcing a rule that applies not only on the tragic facts of this case, but in every case where a biological father is confronted by a man who also qualifies as a presumed father.
The majority‘s claim that only a “small subset” of biological fathers is at risk under its holding (maj. opn., ante, 10 Cal.Rptr.3d at p. 223, 85 P.3d at p. 17) is neither accurate nor reassuring. The majority errs in asserting that an unwed biological father can necessarily escape the effect of its conclusion simply “by executing a voluntary declaration of paternity.” (Ibid.) A voluntary paternity declaration is not effective without the mother‘s signature. (
The majority also errs in asserting that unwed biological fathers can necessarily escape the effect of its conclusion by “successfully maintain[ing] a parent-child relationship such that no other man obtains the opportunity to qualify as a presumed
Indeed, the majority‘s application of
Given today‘s world, the substantial risk the majority‘s conclusion poses for unwed biological fathers is no small matter. According to the Centers for Disease Control and Prevention, in 2002, there were 1,365,966 births to unmarried women in the United States — more than one out of every three (34 percent) — and these numbers are similar to those reported “since 1995.”32 Recent statistics also show that 39 percent of children in the United States under the age of 18 live apart from their biological fathers. (Sparling, All in the Family: Recognizing the Unifying Potential of Same-Sex Marriage (2001) 10 Law & Sexuality 187, 202, fn. 86.) Thus, literally thousands of unwed biological fathers are potentially at risk under the majority‘s conclusion.
Indeed, contrary to the majority‘s claim, even biological fathers who “married the mother of their child” (maj. opn., ante, 10 Cal.Rptr.3d at p. 223, 85 P.3d at p. 17) are at risk under the majority‘s conclusion if they were not cohabiting with the mother at the time of conception or did not marry the mother until after the child‘s birth. (
II. HERIBERTO HAD A STATUTORY RIGHT TO BE PERSONALLY PRESENT.
Heriberto claims that under
Regarding the paternity determination, the majority asserts that
The majority is incorrect, because it misconstrues the statutory language. As relevant here,
As this discussion demonstrates, my analysis does not, as the majority asserts, “fail[ ] to recognize” (maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8, fn. 2) that, as here relevant,
Indeed, despite its analysis, in a footnote the majority concedes that a prisoner‘s right to be present under
However, the majority fails to justify its conclusion that, under
Nor is the majority correct that my construction would produce an “absurd result.” (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8.) The majority asserts that, under my conclusion, a juvenile court “must” give notice and order a prisoner‘s production for ”every” hearing in the course of the dependency proceeding. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 213, fn. 2, 85 P.3d at p. 8, fn. 2.) However, by the statute‘s express terms, even after giving notice, a court must order the prisoner‘s production only “[u]pon receipt ... of a statement from the prisoner or his or her attorney indicating the prisoner‘s desire to be present during the court‘s proceedings....” (
The majority‘s fallback position — that Heriberto actually “was absent for only a portion of the presumed father hearing” (maj. opn., ante, 10 Cal.Rptr.3d at p. 214, 85 P.3d at p. 9, italics added) — is simply incorrect. In support of its assertion, the majority notes that Heriberto was present at hearings on April 13 and April 30, and
Although I agree with the majority that Heriberto had such a statutory right with respect to adjudication of the petition, I have a comment about the majority‘s analysis; it further demonstrates the majority‘s attempt to obfuscate the fact that the juvenile court in this case made a paternity finding that terminates Heriberto‘s rights, not merely a finding as to who “the presumed father” is. (Maj. opn., ante, 10 Cal.Rptr.3d at p. 212, 85 P.3d at p. 8.) As relevant here,
The majority‘s consideration of the due process issue while remaining silent on the threshold issue violates our longstanding rule that we “`“will not decide constitutional questions where other grounds are
The majority‘s failure to consider this issue, in contravention of our basic framework for interpreting statutes, enables the majority to avoid answering the crucial question of whether, in light of the juvenile court‘s finding in favor of Paul, Heriberto is still Jesusa‘s father. In my view, the majority should take a stand on this question, because if, as I have explained, the juvenile court‘s ruling establishes that Heriberto is not Jesusa‘s father, then under Kelsey, the juvenile court has terminated his parental rights in violation of constitutional requirements.
III. CONCLUSION.
Like the majority, I am deeply concerned about the fate of Jesusa. However, unlike the majority, I conclude that because Heriberto is both the biological father and a presumed father under
NOTES
We decline to interpret the statute to reach such an absurd result.Notes
[1] Except as otherwise indicated, all further statutory references are to the California Family Code.
[2] The majority states that Paul also qualified for the presumption under subdivision (d) of section 7611. (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 210, 215, 85 P.3d at pp. 6, 10.) However, the record shows that the juvenile court based its finding regarding Paul only on subdivision (a) of section 7611, and that no one argued in the juvenile court that he qualified for the presumption under section 7611, subdivision (d). In this regard, citing section 7611, subdivision (a), the Court of Appeal stated that Paul “qualifies as a presumed father because he and Jesusa‘s mother were married to each other at the time of Jesusa‘s birth.” Nor does the record contain sufficient evidence to support the majority‘s independent finding that Paul met the requirements of section 7611, subdivision (d), specifically, that he “openly [held] out [Jesusa] as his natural child.” (Italics added.) The record indicates that Paul has never claimed to be Jesusa‘s natural father. (See Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051, 43 Cal.Rptr.2d 445, 898 P.2d 891 [presumption under
[3] The majority concedes that similar language in section 7541, subdivision (a), establishes that a presumption “is rebutted by evidence of biological fatherhood.” (Maj. opn., ante,
[4] The majority asserts that these provisions do not apply here because no testing was requested or performed and “case law has strictly construed these testing requirements.” (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 225-226,
[5] The same analysis establishes that proof of biological paternity necessarily rebuts the other nonconclusive presumptions under section 7611, including the presumption under subdivision (d) of that section.
[6] These provisions show one additional thing: that the court in In re Raphael P. (2002) 97 Cal.App.4th 716, 734, 118 Cal.Rptr.2d 610, erred in stating that section 7551 “do[es] not authorize courts to order genetic testing of a man who meets the statutory test for presumed fatherhоod.” To support its statement, the court reasoned that section 7611 refers to testing of an “alleged father,” not a “presumed father [ ].” (In re Raphael P., supra, 97 Cal.App.4th at p. 734, 118 Cal.Rptr.2d 610.) However, as explained above, sections 7541 and 7576 provide that testing of a presumed father done “pursuant to” section 7551 rebuts their respective presumptions if it shows that the presumed father is not the biological father. (
In any event, when Paul and Heriberto first appeared in this action and alleged that they qualified for a paternity presumption, they were merely “alleged father[s].” (
[7] Moreover, the statutes themselves tell courts what to do when faced with such a situation. As explained above, section 7554, subdivision (a), directs that the paternity of a man who qualifies for a presumption under section 7611 “shall be resolved according[]” to tests showing that he “is not the father.” Where a presumed father under section 7611 also qualifies for a presumption under section 7555, testing will show that another presumed father under section 7611 “is not the father,” and his “paternity” must be determined “accordingly.” (
Contrary to the majority‘s assertion, Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535 (Steven W.) did not “reject[ ]” my approach. (Maj. opn., ante,
[8] Specifically, as contemplated by our statutes and court rules, Heriberto filed a form JV-505 stating: “I believe I am the child‘s father and request that the court enter a judgment of paternity.” (See
[9] The Legislature‘s intent to have the general rule apply to the other section 7611 presumptions also explains why it did not include in section 7612 a provision “analogous” to section 7541 or section 7576, and why it did not “reference[ ] the testing provisions at section 7550 et seq. in the opening `excepting’ clause to section 7612, subdivision (a).” (Maj. opn., ante,
[10] The majority‘s analysis is also inconsistent with the Legislature‘s treatment of presumptions raised by voluntary paternity declarations. By statute, such presumptions “override” all of the other section 7611 presumptions except the section 7540 presumption. (
[11] Moreover, in 1960, when we first characterized the section 7540 presumption as “a substantive rule of law,” we based that characterization on the fact that the presumption was not rebuttable. (Kusior, supra, 54 Cal.2d at p. 619, 7 Cal.Rptr. 129, 354 P.2d 657.) As explained above, the Legislature subsequently made the section 7540 rebuttable.
[12] (Jackson v. Jackson (1967) 67 Cal.2d 245, 247, 60 Cal.Rptr. 649, 430 P.2d 289 [conclusive presumption does not operate where evidence shows “it was impossible that the child was conceived during the period of cohabitation“]; Kusior, supra, 54 Cal.2d at p. 620, 7 Cal.Rptr. 129, 354 P.2d 657 [blood tests “conclusively rebut[ ]” rebuttable presumption]; Anderson v. Anderson, supra, 214 Cal. at pp. 416-417, 5 P.2d 881 [where biological paternity by “a stranger is established beyond question,” husband‘s presumption “no longer obtains“]; Baker, supra, 13 Cal. at p. 101 [husband‘s presumption was “met and overcome by” mother‘s admission that another man was the biological father]; Hughes v. Hughes, supra, 125 Cal.App.2d at pp. 784-787, 271 P.2d 172.)
[13] According to the majority, commentary on the deletion of the 1973 Act‘s weighing provision “implies” that the 1973 Act “relied on something other than genetic testing to resolve competing presumptions.” (Maj. opn., ante,
[14] (E.g., In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15, 24 Cal.Rptr.2d 751, 862 P.2d 751[“[a] biological or natural father is one whose biological paternity has been established“]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3, 4 Cal.Rptr.2d 615, 823 P.2d 1216 (Kelsey) [“`natural father’ ... mean[s] a biological father“]; Cornelious, supra, 35 Cal.3d at p. 464, 198 Cal.Rptr. 543, 674 P.2d 245 [that woman had genetic trait for sickle cell anemia “means that either her natural mother or her natural father must carry the trait“]; In re Lisa R. (1975) 13 Cal.3d 636, 649, 119 Cal.Rptr. 475, 532 P.2d 123 [appellant‘s interest “arose from more than the mere biological fact that he is [child‘s] natural father“]; id. at p. 647, 119 Cal.Rptr. 475, 532 P.2d 123; People v. Sorensen (1968) 68 Cal.2d 280, 289, 66 Cal.Rptr. 7, 437 P.2d 495 [husband‘s presumption may exist even though he “is not the natural father“].)
[16] Thus, it is ironic that the majority accuses me of “interpret [ing]” the statutory scheme “as though it included [a] directive” that is not there. (Maj. opn., ante,
[17] Our conclusion on this point did not, as the majority suggests, derive from “materials extrinsic to the UPA.” (Maj. opn., ante,
[18] As this discussion demonstrates, Nicholas H. did not, as the majority asserts, merely “describe[ ] a common circumstance in which rebuttal might be appropriate.” (Maj. opn., ante,
[19] As this analysis demonstrates, the majority errs in asserting that my construction “cannot be reconciled” with Nicholas H. (Maj. opn., ante,
[20] As already explained, also supporting my construction is the fact that the hierarchy of presumptions established in subdivision (e) of section 7576 affirmatively demonstrates the Legislature‘s intent that a presumption under section 7555 based on biological paternity would outweigh a presumption under subdivisions (a) through (e) of section 7611. Moreover, by statute, the requirements for a valid voluntary declaration of paternity include a signed statement “by the mother” that the identified father “is the only possible father” (
Section 7575, subdivision (b), which the majority incorrectly cites instead of section 7576, addresses the rescission or setting aside of voluntary declarations, not the rebuttal of presumptions based on such declarations. Voluntary declarations signed after 1996, which are subject to section 7575, do not merely raise a presumption of paternity, they “establish the paternity of a child” and “have the same force and effect as a judgment for paternity issued by a court.” (
[21] Ironically, notwithstanding its criticism of my analysis, the majority аdopts a construction of Penal Code section 2625 without citing a single supporting decision and, in so doing, disapproves two published Court of Appeal decisions because they adopted a “contrary” construction “without examining [relevant] legislative history.” (Maj. opn., ante,
[22] (Doe v. Doe (2002) 99 Hawai‘i 1, 52 P.3d 255, 262; Witso v. Overby (Minn.2001) 627 N.W.2d 63, 66; N.A.H. v. S.L.S., supra, 9 P.3d at p. 360; Love v. Love (1998) 114 Nev. 572, 959 P.2d 523, 526-527.)
[23] For the same reason, the majority is incorrect in stating that these non-California decisions, which construed a statute significantly different from either California‘s UPA or the 1973 Act, “addressed the issue” now before us under California‘s UPA or even were rendered in a “UPA state.” (Maj. opn., ante,
[24] The majority incorrectly suggests that I would make biology determinative only“within the first two years of life.” (Maj. opn., ante,
[25] Black‘s Law Dictionary defines “paternity” as “[t]he state or condition of being a father, esp. a biological one; fatherhood.” (Black‘s Law Dict., supra, at p. 1148, col. 2.) It defines “paternity suit” or “parentage action” as “[a] court proceeding to determine whether a person is the father of a child.” (Ibid., italics added.)
[26] Thus, the majority is incorrect in asserting that I have not cited anything to support my conclusion that the juvenile court‘s ruling “render[s] Heriberto a legal stranger to” Jesusa. (Maj. opn., ante,
[27] The parties have taken a consistent position in this court. The brief filed on Jesusa‘s behalf asserts that “once the juvenile court found that Paul ... was the presumed father, Heriberto was no longer considered a legal parent” and “no longer maintained his legal status as Jesusa‘s parent.” At oral argument, DCFS stated that a determination of who is the presumed father is a determination of who is the legal father, and that the court‘s finding that Paul is the presumed father thus is the same as a paternity determination and resolved Heriberto‘s formal request that the court enter a judgment of paternity. DCFS also argued that the finding that Paul is the presumed father means that Paul is Jesusa‘s legal father and that he has the rights and responsibilities of being a father.
[28] Even were the majority correct that any of these provisions applies, only in the most technical sense could it be said that Heriberto retains any parental rights. At best, the majority‘s reliance on the meager rights Heriberto purportedly retains under these provisions elevates form over substance.
[29] Moreover, that other witnesses may have been able to testify on this issue (maj. opn., ante,
[30] Under the majority‘s analysis, even a married man who lives with his wife and biological child for two years and fulfills all of his responsibilities as a father apparently does not qualify for constitutional protection unless he takes additional steps to formalize his paternal relationship. Thus, little is left of Kelsey under the majority‘s view.
[31] The majority‘s analysis also depends on an obvious nonsequitur. After noting that Heriberto is in prison, the majority states: “Heriberto thus effectively seeks the rights of fatherhood without any of its responsibilities.” (Maj. opn., ante,
[32] See http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52 — 10.pdf (as of Mar. 1, 2004).
[33] According to the majority‘s own analysis, only one class of biоlogical fathers — those “who are married to and cohabit with the mother” at the time of the child‘s conception — do not need the mother‘s cooperation after the child‘s birth to be protected. (Maj. opn., ante,
[34] I also agree with the majority‘s conclusion that the juvenile court‘s error in this regard was harmless. However, because the court‘s error in determining paternity affected its disposition, I would reverse the dispositional order.
[35] The same analysis would apply if this were a proceeding to terminate parental rights “brought under Part 4 (commencing with Section 7800) of Division 12 of the Family Code, and Section 366.26 of the Welfare and Institutions Code....” (
[36] The majority‘s analysis is suspect for another reason. It proceeds as if the juvenile court did not order Heriberto‘s production and the question is whether this failure was an abuse of discretion. However, the juvenile court did order Heriberto‘s production at the July 17 hearing, and the issue is whether it had discretion to proceed despite noncompliance with its order. Contrary to the majority‘s statement (maj. opn., ante,