In rе JESUSA V., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
Heriberto C., Defendant and Appellant.
Supreme Court of California.
*209 John L. Dodd, Tustin, under appointment by the Supreme Court, and Lisa A. DiGrazia for Defendant and Appellant.
Lloyd W. Pellman, County Counsel, and Lois D. Timnick, Deputy County Counsel, for Plaintiff and Respondent.
Children's Law Center of Los Angeles, Law Offices of Kenneth P. Sherman, Marissa Coffey, Monterey Park, and Kenneth P. Sherman for Minor.
Donna Wickham Furth and Shannan Wilber for Northern California Association of Counsel for Children and Legal Services for Children, San Francisco, as Amici Curiae on behalf of Minor.
BAXTER, J.
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.
*210 Paul, who was married to the mother at the time Jesusa was born and who had received the child into his home and had held her out as his own, promptly requested a declaration that he was Jesusa's presumed father. (Fam.Code, § 7611, subds.(a), (d).) Nine days later, Heriberto also filed a request to be declared the presumed father. The juvenile court ordered the Los Angeles County Sheriff to produce Heriberto, who was incarcerated, for the hearing to identify the presumed father and to adjudicate the dependency petition. (See Pen.Code, § 2625.) In the interim, however, Heriberto had been convicted of the rape and moved from the county jail to North Kern State Prison, rendering the court's transfer order ineffective. The hearing went forward in Heriberto's absence but in the presence of his attorney. At that hearing, the juvenile court declared that Paul was Jesusa's presumed father[1] under Family Code section 7612 and found that Jesusa was a dependent of the court under Welfare and Institutions Code section 300, subdivisions (a) and (b). With the mother's consent, the court maintained Jesusa's placement with Paul.
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 subdivisions (a) and (b) of section 300 of the Welfare and Institutions Code.
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 Family Code section 7611 and asked that Jesusa be placed with him and her five half siblings. The mother supported both requests and declared in *211 writing that Paul, as well as Heriberto, had held himself out as Jesusa's father and had accepted her into his home.
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 (Pen.Code, § 2625) for Heriberto to attend a hearing on April 30, 2001, on presumed fatherhood. The court also advised counsel to brief the matter and to consider having Heriberto file a supporting declaration.
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 *212 father, this court is protecting and preserving a family unit, the integrity of a family unit."
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 Penal Code section 2625, subdivision (d) to adjudicate the petition in Heriberto's absence. Because this construction of section 2625 created a conflict with two other published decisions, In re Rikki D. (1991)
DISCUSSION
A
Although Heriberto was represented by counsel at the presumed fatherhood hearing, he claims the trial court violated Penal Code section 2625 and due process by proceeding in his absence. The Court of Appeal, relying on the fact that Heriberto was represented at thе hearing by counsel, correctly rejected this claim.
Penal Code section 2625 requires a court to order a prisoner-parent's temporary removal and production before the court only "where the proceeding seeks to terminate the parental rights of [the] prisoner" under Welfare and Institutions Code section 366.26 or Family Code section 7800 et seq. or "to adjudicate the child of a prisoner a dependent child." (Pen.Code, § 2625, subds.(b), (d); see In re Barry W. (1993)
The hearing on presumed fatherhood was governed instead by Penal Code section 2625, subdivision (e): "In any other action or proceeding in which a prisoner's parental or marital rights are subject to adjudication, an order for the prisoner's temporary removal from the institution and for the prisoner's production before the court may be made by the superior court of the county in which the action or proceeding is pending...." (Italics added; see generally Payne v. Superior Court (1976)
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,
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 *214 case, for example, the court advised the parties to brief the issue of presumed fatherhood which Heriberto did and instructed Heriberto's counsel "to consider having him file a declaration." That Heriberto failed to file a declaration and that he still has not identified any critical testimony he could have offered (see Welf. & Inst.Code, § 388, subd. (a)) or explained why it could not have been offered by other witnesses or by documentary evidence does not create a statutory right for him to personally attend the hearing on his presumed father status.
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,
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,
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 *215 had rendered the transfer order ineffective, the court made plain its understanding, based on the foregoing, "that the issue of paternity would be fully decided on the briefs and argument on the briefs. No testimony to be taken." Under the circumstances, we cannot say that Heriberto's involuntary physical absence from that final stage deprived him of a meaningful opportunity to be heard.
Our conclusion is consistent with the case law. In Axsana S., supra,
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 Family Code section 7611,[4] the relevant provision of the Uniform Parentage Act (§§ 7600-7730, hereafter UPA). Paul qualified under section 7611, subdivision (a), in that Jesusa was born during his marriage to the mother, as well as subdivision (d), in that he had received the child into his home and openly held her out as his child. Heriberto qualified under subdivision (d) in that he too had received Jesusa into his home and openly held her out as his child.
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)
Heriberto claims that his biological paternity constitutes clear and convincing evidence rebutting Paul's claim to presumеd fatherhood under section 7612, subdivision (a). In the alternative, he claims that even if Paul's claim to presumed fatherhood is not rebutted, it is outweighed by Heriberto's claim under section 7612, subdivision (b).
1
In In re Nicholas H. (2002)
Our holding was based on the text of section 7612. We observed first that subdivision (a) provides merely that a presumption under section 7611 "`may be rebutted in an appropriate action only by clear and convincing evidence.'" (Nicholas H., supra,
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,
As we observed in Nicholas H., the text of section 7612, subdivision (a) does not articulate a categorical rule detailing when the section 7611 presumption of paternity is rebutted, but instead provides only that the presumption "`may'" be rebutted "`in an appropriate action.'" (Nicholas H., supra,
Our analysis in Nicholas H. also was informed by section 7575, subdivision (b), which "permits but does not require" a court to rely on blood test evidence in deciding whether to set aside a voluntary declaration of paternity signed on or before December 31, 1996. (Nicholas H., supra,
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,
In Kiana A., supra,
Kiana A. also relied on Steven W. v. Matthew S. (1995)
Heriberto cites only one case to the contrary Brian C. v. Ginger K., supra,
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 section 7612, subdivision (a). A juvenile court confronted with such a claim must instead consider whether rebuttal of the presumption would be appropriate in the circumstances of the case. (Cf. Nicholas H., supra,
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 *219 every weekend. Paul also provided shelter to Jesusa and her mother during periods of conflict between the mother and Heriberto periods that sometimes lasted as long as a month. Inasmuch as Jesusa was less than two years old at the time Heriberto was arrested, Paul has plainly been involved in a substantial portion of the child's young life and considers Jesusa to be a part of his family. Moreover, the mother supported Paul's effort to be deemed the presumed father.
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" (§ 7612, subd. (b)) and determined that the scales favored Paul. We once again find no abuse of discretion.
At the outset, we reject the notion that the juvenile court was bound by section 7612, subdivision (b) to accord determinative weight to biology. This section, which derives from the UPA, nowhere states that biology is a conclusive consideration of policy and logic. (Doe v. Doe (2002)
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 *221 the man who has mere biological ties. [¶] By finding [Paul] is the presumed father, this court is protecting and preserving a family unit, the integrity of the family unit."
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,
That Heriberto had satisfied the minimum requirements to qualify as a presumed father under section 7611 did not compel a finding that his interests and Paul's were equally balanced under section 7612. Thus, even if the juvenile court might have relied on biological paternity to select between presumptions of equal value, such a rule would not have aided Heriberto.
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,
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)
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)
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,
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,
(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,
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)
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. (§ 7541, subd. (a).) Similarly, in section 7576, the Legislature provided that voluntary declarations of paternity signed on or before Decеmber 31, 1996, under section 7570 et seq. or former section 20102 would not override a presumption of paternity arising under section 7555, the genetic testing provision. (§ 7576, subd. (e).) Had it wanted to specify the precise weight to be accorded biology for the remaining section 7611 presumptions, the Legislature could have crafted an analogous provision, or it could have referenced the testing provisions at section 7550 et seq. in the opening "excepting" clause to section 7612, subdivision (a). Indeed, by expressly excepting the marital presumption and the voluntary declaration of paternity presumption from the operation of section 7612, subdivision (a) and making separate provision for the legal effect of biology in those circumstances, the Legislature plainly believed that section 7612, subdivision (a) did not necessarily accord primacy to biology. Justice Chin's proffered interpretation would render the "excepting" clause meaningless.
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 *225 limited exception to the conclusive presumption, the Legislature did not intend to make that presumption more rebuttable than the already rebuttable UPA presumptions." (Dis. opn. of Chin, J., post, 10 Cal.Rptr.3d at pp. 249-250, 85 P.3d at pp. 39-40.) But the dissent is comparing apples and oranges. Unlike the presumptions enumerated in section 7611, the conclusive marital presumption in section 7540 is not really a presumption at all but is instead a "a rule of substantive law." (Estate of Cornelious (1984)
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,
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,
(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,
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,
(d) Justice Chin and, to a lesser extent, Justice Kennard rely on the provisions of the Uniform Act on Blood Tests to Determine Paternity (§ 7550 et seq.), a statutory scheme that the parties and amici curiae nowhere discuss or even cite. In this case, such reliance is inappropriate and unwise.
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)
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,
*228 The legislative history also fails to support Justice Chin's interpretation. According to his dissent, the purpose of section 7555, which creates a rebuttable presumption of paternity if the paternity index is 100 or greater, was to standardize the weight accorded to genetic tests in determining biological paternity. The problem, one legislative analysis explained, was that jurors were failing to accord due weight to the tests and were instead relying on less probative markers of biological paternity, such as "`the appearance of the natural mother.'" (Dis. opn. of Chin, J., post,
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,
(e) Justice Chin accuses the court of repudiating the policy set forth in Johnson v. Calvert (1993)
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,
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 dependency 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 lаter than the next judicial day. (Welf. & Inst.Code, § 315.) "At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers." (Id., § 316.2, subd. (a), italics added.) Indeed, under the California Rules of Court, the court should conduct this inquiry at the beginning of the initial hearing on the petition. (Cal. Rules of Court, rule 1441(a), (b).) If one or more men are identified as an alleged father, each shall be provided notice of the proceeding and *230 informed that it could result in termination of his parental rights. (welf. & insT.code, § 316.2, subd. (b).)
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. (Welf. & Inst.Code, § 316.2, subd. (e).) Alternatively, the juvenile court itself "may make such a determination" even if no action is filed under Family Code section 7630. (Cal. Rules of Court, rule 1413(e).) The court may order the parties to submit to blood tests (rule 1413(e)(1)) or "may make its determination of paternity or nonpaternity based on the testimony, declarations, or statements of the mother and alleged father" (rule 1413(e)(2)). Any determination made by the juvenile court in either scenario shall be noted in the court minutes. (Welf. & Inst.Code, § 316.2, subd. (f).)
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)
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)
*231 We do agree with Heriberto on one point: the dependency scheme does not require the juvenile court to make a paternity determination prior to adjudicating the dependency petition. As in other types of cases (e.g., Rutherford v. Owens-Illinois, Inc. (1997)
D
Having exhausted Heriberto's challenges to the juvenile court's declaration of 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" tо 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 *232 goes without saying that a prisoner who is represented by counsel would have a right to have counsel in attendance at any legal proceeding. On the other hand, Heriberto argues, with equal force, that a disjunctive construction of the word "or" would make meaningless the statute's directive that a court order a prisoner's production once the prisoner has indicated a desire to attend. We therefore agree that the statute is ambiguous and turn to additional indicators of the legislative intent. (Arnold v. Hopkins (1928)
In construing statutes, we must rely on "`"`the usual, ordinary import of the language employed in framing them.'"'" (Phelps v. Stostad (1997)
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. *233 [¶] ... [¶] [O]ccasionally the notice required ... to adjudicate a child a ward of the court is not received by the inmate in time for that person to be present at the hearing. This bill would solve the problem since the hearing could not proceed without some acknowledgement from the prisoner-parent." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 4354 (1975-1976 Reg. Sess.) as amended June 3, 1976, pp. 2-3.) Only by requiring the prisoner either to be present or to have executed a waiver of his or her appearance can the court ensure the prisoner actually received the notice. The juvenile court thus erred in proceeding without Heriberto's presence or his waiver of that right.[12]
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)
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,
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 similarly mandate the defendant's presence at trial unless a waiver is submitted. (See People v. Gutierrez (2003)
Our conclusion is bolstered by the strong countervailing interest, expressed by the Legislature itself, that dependency actions be resolvеd expeditiously. (Welf. & Inst.Code, § 352, subd. (b); In re Malinda S., supra,
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,
We observe as well that no denial of due process has been found where the prisoner-parent *235 is unable to attend because he or she is in the custody of another state or the federal government and is instead represented by counsel. (E.g., In re Maria S., supra, 60 Cal.App.4th at pp. 1312-1313,
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. was 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 nо 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 *236 attorney, held the paternity hearing in Heriberto's absence and ruled that Paul was Jesusa's legal father. A jurisdictional hearing on the dependency petition followed; Heriberto's attorney unsuccessfully asserted his incarcerated client's right to be present.
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 (Fam.Code, §§ 7600-7730, hereafter the UPA),[2] the Uniform Act on Blood Tests to Determine Paternity (§§ 7550-7557), and other Family Code sections enacted by the Legislature (§§ 7540-7541, 7570-7577). Under the UPA, a man is "presumed to be the natural father of a child" if he meets certain conditions described in section 7611: He marries or attempts to marry the mother under circumstances specified in the statute; he and the child's mother sign a declaration stating that he is the father; he "receives the child into his home and openly holds out the child as his natural child" (§ 7611, subd. (d)); or the child is born in a country participating in an Orderly Departure Program, and the man acknowledges his paternity in a declaration filed under penalty of perjury. As to most of these conditions, the presumption is "a rebuttable presumption affecting the burden of proof" (§ 7612, subd. (a)), which may be refuted by clear and convincing evidence. This is not the case, however, as to the presumption described in section 7540. That section states that when a married woman living with her husband gives birth to a child, the husband is ordinarily conclusively presumed to be the child's father. But if blood tests taken in a paternity action before the child is two years old show "that the husband is not the father of the child, the question of the paternity of the husband shall be resolved accordingly." (§ 7541, subd. (a), italics added; see also § 7554 [when blood tests have been taken in any proceeding in which paternity is a relevant fact, and "the conclusions of all the experts ... are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly"].)[3]
*237 Here, Paul and Jesusa were married when Jesusa was born, but Paul did not qualify for the conclusive presumption of paternity (§ 7540) because he and Jesusa's mother were not living together at the time of birth. Heriberto and Paul, however, both qualified as presumed fathers. (§ 7611.) Heriberto qualified because he received Jesusa into his home and held her out as his natural child. Paul qualified because he was married to Jesusa's mother.[4]
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." (§ 7612, subd. (b).) The juvenile court here construed that statutory phrase as permitting it to decide paternity based on the child's best interests. It explained: "The man who provides the stability, nurturance, family ties, permanence, is more important to a child than a man who has mere biological ties." Based on these considerations, the court adjudicated the question of Jesusa's paternity in favor of Paul, whom everyone agreed was not the biological father.
The juvenile court may well have been right that Paul rather than Heriberto wаs likely to be a better parent to Jesusa. That, however, is not dispositive under subdivision (b) of section 7612, as becomes clear when other sections of the Family Code are considered.
As noted earlier, section 7541 provides that when a child is under the age of two, and a blood test has shown that a man who, like Paul here, is married to the child's mother is not the child's biological father, the trial court must resolve the question of paternity against that man. Similarly, section 7554 says that when blood tests are used to resolve a paternity dispute, those tests are dispositive. Thus, sections 7541 and 7554 reflect the Legislature's view that when a paternity dispute between two presumptive fathers involves a child less than two years old, biology is the "weightier consideration[ ] of policy and logic" under section 7612, subdivision (b). The biological father would not prevail if he was not a presumed father (see 10 Cal.Rptr.3d p. 237, 85 P.3d p. 29, ante), because section 7612 applies only to disputes between presumed fathers. But here, because Heriberto the biological father was also a presumed father and Jesusa was under two years of age, the juvenile court should have resolved the question of paternity in his favor.
The majority insists that sections 7541 and 7554 "have no application here" (maj. opn., ante,
In any event, the majority acknowledges that dispositive here is what the Legislature meant when it said, in subdivision (b) *238 of section 7612, that between two statutorily presumed fathers, paternity must be resolved in favor of the man whose presumption "is founded on the weightier considerations of policy and logic." As discussed above, sections 7541 and 7554 show that as to children under the age of two years, the Legislature views biology as the "weightier consideration." Thus, because Heriberto, one of the presumed fathers, was undisputedly Jesusa's biological father, the juvenile court should have adjudicated paternity in his favor.
In upholding the trial court's contrary ruling, the majority relies on In re Nicholas H. (2002)
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)
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,
Second, the majority insists that Heriberto is not entitled to the due process protection articulated in Kelsey, supra,
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 *239 taken to identify Jesusa as his daughter to "government agencies." Responding that such actions by Heriberto would have no bearing on the outcome of the paternity hearing, the court went ahead with the hearing. Because the trial court prevented Heriberto from testifying that he tоok such steps, he cannot be faulted for failing to present evidence that he did so.
Moreover, even if Heriberto had taken no"legal steps to formalize his relationship" (maj. opn., ante,
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,
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." (Pen.Code, § 2625, subd. (b), italics added.) If the court receives "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 prisoner's production before the court." (Pen.Code, § 2625, subd. (d).) Also, "no petition to adjudge the child of a prisoner a dependent child of the court ... 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 [from the institution where the prisoner is incarcerated] stating that the prisoner has ... indicated an intent not to appear...." (Ibid.)
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 Penal Code section 2625, an error that the majority upholds.
*240 According to the majority, Penal Code section 2625 entitles a prisoner to be present only when the juvenile court decides the issues of jurisdiction and disposition, but not when it decides other matters that are part of the dependency proceedings, such as the paternity dispute here. Not so. Subdivision (b) of section 2625 says that a prisoner must be notified of "any court proceeding regarding the [dependency] proceeding" (italics added); and subdivision (d) of the same section says that when, as here, the prisoner asks to attend any such proceeding, the court must order the prisoner's transportation.
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,
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) (Fam.Code, § 7600 et seq.)[1] we held that where biological parentage is established, courts faced with competing claims should not"decide parentage based on the best interests of the child." (Johnson v. Calvert (1993)
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 *241 conclusion is inconsistent with California's statutory scheme, which requires courts to determine paternity in accordance with biological fact even where a man enjoys a so-called conclusive presumption of paternity. It is also inconsistent with compelling legislative history that clearly shows our Legislature's intent to have parentage determined by biology where possible. Through the statutory scheme and its legislative history, the Legislature has directed us to determine parentage in this case as opposed to custody in accordance with what everyone concedes is the biological truth: that Heriberto C. is the father of Jesusa V. Finally, the majority's conclusion raises serious constitutional questions regarding the rights of biological fathers. For all of these reasons, I dissent from the majority's holding that Heriberto's status as a presumed father and his unquestioned biological paternity do not necessarily rebut or outweigh the presumption under section 7611 that Paul B. is Jesusa's "natural father," and that the determination of paternity depends instead on a trial court's subjective and discretionary assessment of the child's best interests.
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 Penal Code section 2625 to be personally present. The majority's cramped interpretation of this provision is inconsistent with the statute's plain language.
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,
Moreover, the majority's rule applies not just in this case, but in all cases involving competing paternity claims of men who qualify under section 7611 as presumed "natural father[s]" of a child. Given the prevalence in today's world of fractured families and the relative ease of qualifying as a presumed "natural father" especially under the majority's analysis in this case thousands of biological fathers in California may now be at risk that, although they have a loving, healthy, and well-developed relationship with their children, some court may terminate their parental rights based on the conclusion that another man who qualifies as a presumed father would be a better father. Thus, the majority's conclusion has serious implications extending well beyond this case; it permits judges making paternity decisions to ignore biological fact because they believe someone else would make a better father, and it permits them to do so in the biological father's absence if the biological father is a prisoner. Because these results are not authorized by statute and were not intended by the Legislature, I dissent.
I. HERIBERTO's BIOLOGICAL PATERNITY CONTROLS.
As the majority explains, this case involves a clash of competing presumptions under section 7611 that a particular man is Jesusa's "natural father." The juvenile court found that, in addition to being Jesusa's "biological father," Heriberto qualified *242 as a presumed father because he "holds himself out as the father and has received [Jesusa] into his home." The latter finding qualified Heriberto for the presumption under subdivision (d) of section 7611, which applies where a man "receives the child into his home and openly holds out the child as his natural child." The juvenile court found that Paul qualified as a presumed father because he "was married to [Jesusa's mother] at the time [Jesusa] was conceived and born," even though Jesusa's mother "was living with" Heriberto when Jesusa "was conceived and apparently when [she] was born." These findings qualified Paul for the presumption under subdivision (a) of section 7611, which applies where a child is born "during the marriage" of a man "and the child's natural mother."[2]
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." (§ 7612, subd. (a).) The UPA also provides that "[i]f two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." (§ 7612, subd. (b).) These provisions give rise to two separate questions here: (1) whether Heriberto's unquestioned biological paternity constitutes clear and convincing evidence that necessarily rebuts the presumption that Paul is Jesusa's "natural father" (§ 7611); and (2) if Heriberto's biological paternity does not necessarily rebut Paul's presumption, whether it nevertheless requires a finding that, "on the facts" of this case (§ 7612, subd. (b)), the presumption that Heriberto is Jesusa's "natural father" (§ 7611) is "founded on the weightier considerations of policy and logic." (§ 7612, subd. (b).)
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)
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 (§ 7550 et seq.), "[i]n a civil action or proceeding in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to genetic tests." (§ 7551.) "If the court finds that the conclusions of all the experts, as disclosed by the evidence based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly." (§ 7554, subd. (a), italics added.) "[I]f the court finds that the paternity index, as calculated by the [qualified] experts ..., is 100 or greater," then "[t]here is a rebuttable presumption ... of paternity," which "affect[s] the burden of proof" and "may be rebutted by a preponderance of the evidence." (§ 7555, subd. (a).)
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 section 7551 would surely have shown that Paul "is not the father of" Jesusa (§ 7554, subd. (a)) and that Heriberto is Jesusa's father. Based on such results, section 7554, subdivision (a) would have required that "the question of [Paul's] paternity ... be resolved accordingly" (italics added), that is, with a judicial determination that he is not Jesusa's father. Such a judicial determination would necessarily and conclusively have rebutted the presumption under section 7611 that Paul is Jesusa's "natural father."[3] At that point, only Heriberto would have still been a presumed father under section 7611. Moreover, based on the test results, Heriberto would also have enjoyed "a rebuttable presumption ... of paternity" under section 7555, subdivision (a), and there is no evidence in the record to rebut this presumption.
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., *244 ante,
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 section 7611, that conclusion is evident from the statutory framework as a whole. In addition to defining specific presumptions in subdivisions (a) through (d), section 7611 of the UPA incorporates by reference the presumptions set forth in sections 7540 and 7576. Section 7540 establishes a presumption that "the child of a wife cohabiting with her husband ... is ... a child of the marriage." Although the presumption purports to be "conclusive[ ]" (§ 7540), it is not; "[n]otwithstanding" the presumption, "if the court finds that the conclusions of all the experts, as disclosed by the evidence, based on blood tests performed pursuant to [section 7551], are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly." (§ 7541, subd. (a), italics added.) Parties with standing to request such testing must do so within "two years from the child's date of birth." (§ 7541, subds.(b), (c).) Section 7576, subdivision (a), establishes a "presumption," with "the same force and effect as the presumption under Section 7540," that the child of a man and woman executing a voluntary declaration of paternity before January 1, 1997, "is ... the man's child." Although this presumption also purports to be "conclusive[ ]" (§ 7576, subd. (a)), it *245 is not; "any person" may rebut it "by requesting blood or genetic tests pursuant to" section 7551 within three years from the date of the declaration's execution. (§ 7576, subd. (d).) Thus, the Legislature has expressly provided that, as to young children, biological proof necessarily rebuts even the "conclusive[ ]" presumptions under sections 7540 and section 7576, subdivision (a). Logically, if the Legislature provided that proof of biological paternity necessarily rebuts these so-called conclusive presumptions, both of which are UPA presumptions, then surely the Legislature intended that such proof would rebut the nonconclusive UPA presumption under section 7611, subdivision (a).[5]
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...." (§ 7612, subd. (b).) Section 7576, subdivision (e), provides that if the presumption based on a voluntary paternity declaration is not rebutted, it "override[s] all statutory presumptions of paternity except a presumption arising under Section 7540 or [Section] 7555." (Italics added.) By implication, the hierarchy of presumptions established by this section affirmatively demonstrates the Legislature's intent that the presumption under section 7555 based on biological paternity would outweigh the presumptions under subdivisions (a) through (e) of section 7611. Logically, if the presumption based on a voluntary declaration necessarily overrides the 7611 presumptions (except the conclusive presumption under section 7540), but does not necessarily override section 7555's biologically-based presumption, then section 7555's biologically-based presumption must also necessarily override those section 7611 presumptions. Thus, the Legislature has expressed its policy decision that the presumption of a presumed father who is also the biological father is, "on the facts ... founded on the weightier considerations of policy and logic...."[6] (§ 7612, subd. (b).)
*246 The legislative history of these provisions clearly supports my conclusion. The legislative command that paternity questions "shall be resolved" in accordance with tests conclusively showing that "the alleged father is not the father of the child" (§ 7554, subd. (a)) first appeared in 1953 as part of the Code of Civil Procedure (Stats.1953, ch. 1426, § 1, p. 3013). It derives from the identically-worded section 4 of the 1952 Uniform Act on Blood Tests to Determine Paternity (1952 Act). In a prefatory note, the drafters of the 1952 Act explained that where tests conclusively show that a man is not a child's biological father, "it seems intolerable for a court to permit an opposite result to be reached.... For a court to permit the establishment of paternity in cases where it is scientifically impossible to аrrive at that result would seem to be a great travesty on justice." (9 West's U. Laws Ann. (1957) Miscellaneous Acts, 1952 Act, comrs. note No. 1, p. 103.) Thus, 50 years ago, our Legislature directed courts to give controlling weight to evidence conclusively disproving the biological paternity of a particular man. My conclusion that Heriberto's undisputed biological paternity necessarily rebuts Paul's presumption is consistent with the Legislature's command. The majority holding's that Heriberto's biological paternity is simply a "factor[ ]" that a juvenile court is "obliged" to consider in weighing the competing presumptions under section 7611 (maj. opn., ante,
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 section 7555, subdivision (a). In 1986, when it first enacted this presumption, the Legislature expressly declared in an uncodified section of the enacting legislation: "It is the intent of the Legislature to standardize the process by which paternity is established in order to achieve a greater degree of equity and consistency in paternity determinations. The Legislature finds that the science of genetic testing has advanced to the degree that paternity determinations resulting from such testing are so reliable that the burden of proof can be shifted to the putative father." (Stats.1986, ch. 629, § 1, pp. 2136-2137 [enacting Evid.Code, former § 895.5].) A legislative analysis explained that the section was necessary because," `under existing law, juries, regardless of the biological facts, tend to arrive at their decisions because of very subjective factors such as the appearance of the natural mother, and the ability of the expert witnesses to explain complex matters. The results of trials on these issues do not always correspond to the biological realities, regardless of how overwhelming such evidence may be. In fact, under [one appellate decision], the court is free to ignore blood test evidence. This bill should standardize paternity determinations and insure that blood test findings are given appropriate consideration.'" (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3326 (1985-1986 Reg. Sess.) May 28, 1986, pp. 2-3.) My conclusion that Heriberto's conceded biological paternity necessarily rebuts Paul's presumption is consistent with and implements the Legislature's stated desire to "standardize paternity determinations and insure that" such determinations "correspond to the biological realities." (Id. at p. 3.) The majority's conclusion that a court need only consider biological paternity as one of several "relevant factors" in weighing competing presumptions (maj. opn., ante,
In rejecting my conclusion, the majority misstates the legislative history. The Legislature's expressly declared "purpose" in enacting section 7555 was not, as the majority states, to standardize "the weight accorded to genetic tests in determining biological paternity" (maj. opn., ante,
This conclusion is consistent with a critical fact that the majority's analysis ignores: whereas the section 7611 presumptions, none of which is based on biology, are all subject to the UPA weighing process under section 7612, the presumption based on biology under section 7555 is expressly not subject to that weighing process. By its terms, section 7612 requires the weighing of conflicting presumptions that "arise under Section 7611." As explained above, the presumptions that arise under section 7611 are those specified in *248 subdivisions (a) through (e) of that section and those incorporated by reference from "Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2." All of these presumptions are based on factors other than biology: marriage (§§ 7540, 7611, subd. (a)), attempted marriage (§ 7611, subds.(b), (c)), a voluntary declaration of paternity (§§ 7576, 7611, subd. (e)), or conduct towards the child (§ 7611, subd. (d)). The presumption based on biology under section 7555 appears in chapter 2 of part 2, not in chapter 1 or chapter 3. Because the presumption under section 7555 based on biology does not "arise under Section 7611," it is not subject to weighing under section 7612, subdivision (b); it "may be rebutted" only "by a preponderance of the evidence" disproving the biological facts (§ 7555) and it necessarily rebuts the presumptions that arise under subdivisions (a) through (d) of section 7611. Moreover, the Legislature's exclusion of the presumption based on biology was clearly intentional, not simply an oversight. Until 1994, the only presumption incorporated by reference into the UPA was the presumption in chapter 1 of part 2 based on marriage. (§ 7540; see Stats.1993, ch. 219, § 176, p. 1670.) In 1994, the Legislature amended section 7611 to incorporate the presumption in chapter 3 of part 2 based on a voluntary declaration of paternity. (§ 7576; see Stats.1994, ch. 1269, § 53, p. 8058.) Clearly, the Legislature made a conscious decision to exclude the presumption in chapter 2 based on biology (§ 7554) from the UPA's balancing process under section 7612. This choice reflects the Legislature's intent that biological paternity would control paternity determinations, not that it would be, as the majority asserts, simply a factor that a court must weigh.
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,
Also supporting my conclusion is the evolution and legislative history of the "conclusive[ ]" presumption under section 7540 that "the child of a wife cohabiting with her husband ... is ... a child of the marriage." This presumption originally appeared as Evidence Code former section 621. In 1980, when the Legislature first made the presumption rebuttable with tests showing that "the husband is not the father of the child," only "the husband" was given standing to move for testing and only within "two years from the date of birth of the child." (Stats.1980, ch. 1310, § 1, p. 4433 [amending Evid.Code, former § 621, now Fam.Code, § 7541, subd. (b)].) In 1981, the Legislature extended standing to "the mother of the child," subject to the same time limit and only "if the child's biological father has filed an affidavit with the court acknowledging paternity of the child." (Stats.1981, ch. 1180, § 1, p. 4761 [amending Evid.Code, former § 621, now Fam.Code, § 7541, subd. (c)].) In 1990, the Legislature extended standing to a "presumed father" under section 7611 and to "the child," subject to the same time limit and only "for purposes of establishing [the presumed father's] paternity." (Stats.1990, ch. 543, § 2, p. 2855 [amending Evid. *249 Code, former § 621, now Fam.Code, § 7541, subd. (b)].)
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, Family Code section 7611]. Except for [Evidence Code former] Section 621, all these presumptions are rebuttable and may be met by clear and convincing evidence." (Assem. Com. on Judiciary, analysis of Assem. Bill No. 1981 (1979-1980 Reg. Sess.) June 11, 1980, p. 2.) Thus, "[i]f the conclusive presumption is ... eliminated by proof that the parties did not live together as husband and wife, the disputable presumption [that arises under the UPA] can then be met by any kind of competent evidence." (Id. at p. 3.) The analysis also explained that "an exception to the conclusive presumption ... is needed to prevent in some cases an injustice...." (Id. at p. 2.) Similar statements appear in the legislative history of the 1981 amendment that extended standing to mothers if the biological father acknowledges paternity by affidavit. After stating that "all" of the presumptions "[u]nder the Uniform Parentage Act ... are rebuttable" except the conclusive presumption under Evidence Code former section 621 (ibid.), one analysis explained that the 1981 amendment "would give the child's mother equal standing with the husband" to request testing and to "prevent the [husband's] conclusive presumption of paternity from operating especially where the biological father wishes to establish paternity. ..." (Assem. Com. on Judiciary, analysis of Assem. Bill No. 207 (1981-1982 Reg. Sess.) Feb. 11, 1981, p. 2, italics added.)
These statements demonstrate several important things. First, they show the Legislature's express recognition that the conclusive presumption now found in section 7540 is a UPA presumption and the Legislature's intent to make that UPA presumption necessarily rebutted by proof that the presumed father is not the biological father; the amended statute commands that "the question of paternity of the husband shall be resolved accordingly," that is, in accordance with the proof that "the husband is not the father of the child." (§ 7541, subd. (a), italics added.) Second, they demonstrate that, in making the conclusive presumption rebuttable by the husband, the Legislature intended to make that presumption more like the other presumptions under the UPA, all of which were already rebuttable. Thus, if a husband's otherwise conclusive UPA presumption of paternity is necessarily rebutted by proof he is not the biological father, then the nonconclusive UPA presumptions must also be necessarily rebutted by such proof; in establishing the limited exception to the conclusive presumption, the Legislature did not intend to make that presumption more rebuttable than the already rebuttable UPA presumptions. Finally, as especially relevant here, they demonstrate the Legislature's intent that biological paternity would necessarily rebut even an otherwise conclusive UPA presumption "where the biological father wishes to establish paternity. ..." (Assem. Com. on Judiciary, analysis of Assem. Bill No. 207 (1981-1982 Reg. Sess.) Feb. 11, 1981, p. 2, italics added.) That is precisely the situation here; Heriberto, the biological father, formally "request[ed] that the court enter a judgment of [his] paternity."[8]
*250 The legislative history of the 1990 amendment extending standing to presumed fathers is perhaps even more significant. Regarding the "[n]eed for" this change, one legislative analysis explained: "[T]his measure would rectify those situations where unwed biological fathers are foreclosed from establishing paternity and precluded from continuing a supportive relationship with a child who was born while the mother was married and cohabiting with another man. [It] ... allow[s] a father who has demonstrated an interest in raising and providing for his child in a familial relationship the opportunity to establish paternity under the above factual circumstances. [¶] ... With more children born out of wedlock, to women who may be technically married, but no longer living with their husbands, ... legislation must be adopted which addresses the problems of unwed fathers who want to become involved and be responsible for the welfare of their children." (Sen. Com. on Judiciary, analysis of Sen. Bill No.2015 (1989-1990 Reg. Sess.) Mar. 27, 1990, p. 3.) Another analysis explained that the amendment specifically targeted "those situations wherein a mother, a biological father, and child have lived together as a family, and thereupon, the mother departs to return to a husband or to live elsewhere and the biological father does not have access to the procedures that are otherwise available to a divorced father for determination of' custody or visitation." (Assem. Com. on Judiciary, analysis of Sen. Bill No.2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 3.) The amendment was meant to change the fact that, under then-existing law, where a mother's husband qualified for the conclusive presumption under Evidence Code former section 621, a biological father who also qualified as "a presumed father [could] be refused visitation rights regardless of his established relationship with the child." (Assem. Com. on Judiciary, Report on Sen. Bill No. 2015 (Apr. 4, 1990) p. 3.) The Legislature passed the amendment despite the contention of opponents that it would "seriously erode[ ]" the "public policy of promoting the integrity of an intact family unit, and providing certainty to the relationship of a child in such a family." (Id. at p. 4.) These statements, and the 1990 amendment itself, demonstrate the Legislature's intent that where a man who is a presumed father under section 7611 seeks to establish his paternity within a child's first two years of life, proof of his biological paternity conclusively and necessarily rebuts any other man's UPA presumption, even the otherwise conclusive presumption of the mother's husband.
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 section 7540. Jesusa's mother left Paul, whom she said she "sees ... as a brother" rather than a husband, and moved in with Heriberto three years before the dependency proceeding began on April 4, 2001. She lived with Heriberto when Jesusa was conceived and when she was born (May 1999), and the three of them lived together until the dependency proceeding began, when Jesusa was less than 23 months old. Thus, during the relevant events, although Jesusa's mother *251 was still technically married to Paul, she was living with Heriberto. Moreover, Jesusa's mother reported that Heriberto had "always been very loving and gentle to" Jesusa. Finally, on April 13, 2001, when Heriberto filed a formal request in the dependency action for a judgment declaring his paternity, Jesusa was still less than two years old. Thus, this is precisely the type of case where the Legislature intended that a UPA presumption which, by definition, is not based on biology would necessarily be rebutted by proof that another presumed father is thе biological father.
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,
The majority is incorrect that my construction of these statutes renders part of section 7612, subdivision (a), "meaningless." (Maj. opn., ante,
On the other hand, the majority's construction renders meaningless all of subdivision (b) of section 7612. As I have explained, section 7612 gives rise to two separate questions: (1) under subdivision (a), whether a presumed father's presumption is rebutted; and (2) under subdivision (b), where there are competing unrebutted presumptions, which one "on the facts is founded on the weightier considerations of policy and logic." Under the majority's construction, these questions are exactly the same, and a court looks to the exact same factors to answer each. The majority holds that courts must "consider the child's best interest and public policy in determining" under subdivision (a) of section 7612 "whether [a] presumption is rebutted." (Maj. opn., ante,
The majority's construction also produces absurd results. As noted, the "conclusive" presumption under section 7540 is *253 also a section 7611 UPA presumption, and the majority concedes that, under section 7541, subdivision (a), this "conclusive presumption ... is rebutted by evidence of biological fatherhood." (Maj. opn., ante,
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 section 7611 presumptions because the former, "[u]nlike" the latter, is "not really a presumption at all but is instead `a rule of substantive law.'" (Maj. opn., ante,
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,
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)
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,
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" (§ 7610), which the UPA defines as "the legal relationship existing between a child and the child's natural or adoptive parents...." (§ 7601, italics added.) The particular UPA procedure at issue here is that for establishing "[t]he parent and child relationship ... [b]etween a child and the natural father." (§ 7610, subd. (b), italics added.) Under well established principles of statutory construction, in construing these provisions, "[w]e look first to the plain meaning of the statutory language, giving the words their usual and ordinary meaning. [Citation.]" (People v. Garcia (2002)
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 section 7540 rebuttable by giving "the husband" standing to obtain testing that would necessarily rebut the presumption. (Stats.1980, ch. 1310, § 1, p. 4433 [amending Evid.Code, former § 621, now § 7541, subd. (b)].) One legislative analysis of this amendment explained that a "consequence" of the "irrebutable presumption [wa]s that the child's natural father, when he is not the husband, [could not] establish paternity. Thus, the presumption prevent[ed] the natural father from establishing a legal father-child relationship which is the basis for familial rights...." (Sen. Com. on Judiciary, analysis of Assem. Bill No.1981 (1979-1980 Reg. Sess.) June 23, 1980, pp. 3-4, italics added.) In these comments, the term "natural father" was clearly being used to mean "biological father." Legislative analyses of the 1990 amendment that extended standing to "presumed father[s]" under the UPA (§ 7541, subd. (b)), similarly used the term "natural father" to mean "biological father." Several of those analyses explained that, under then-existing law, standing to rebut the otherwise conclusive presumption under section 7540 *258 was limited to the mother's husband and the mother "if the natural father has filed an affidavit acknowledging paternity." (Sen. Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) as amended July 6, 1990, p. 2, italics added.) The statute these reports described actually provides standing to the mother "if the child's biological father has filed an affidavit with the court acknowledging paternity...." (§ 7541, subd. (c), italics added.) Another analysis explained that the amendment enables "a presumed father" under the UPA to obtain blood tests "to establish himself to be the biological father." (Assem. Com. on Judiciary, Republican Analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) July 7, 1990, italics added.) As already explained, the UPA sets forth a procedure for establishing a parent-child relationship "[b]etween a child and the natural father...." (§ 7610, subd. (b), italics added.) Still another analysis explained that the amendment addressed problems arising under the high court's decision in Michael H. v. Gerald D. (1989)
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,
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,
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,
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,
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,
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 Fam.Code, § 7541, subd. (b)].) According to the amendment's legislative history, the Legislature specifically included this limitation to "clarify that the purpose for" giving presumed fathers and the child standing was "to establish the paternity of the presumed father" and to prevent "a presumed father (who may not be the biologic father) or the child [from] fil[ing] a motion to have the husband determined as not the biologic father, with no intent of obtaining a legal determination to establish paternity in someone else." (Assem. Com. on Judiciary, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 6.) At the same time the Legislature added this limitation, it rejected a proposed amendment that would have deleted the restriction barring a mother from contesting the husband's conclusive presumption unless "the child's biological father has filed an affidavit with the court acknowledging paternity of the child." (§ 7541, subd. (c).) One legislative analysis explained that this proposed amendment could, "if the mother establishes her husband's lack of paternity," leave the child "legally without a father," which "would be contrary to public policy." (Assem. Com. on Judiciary, analysis of Sen. Bill No. 2015 (1989-1990 Reg. Sess.) Apr. 4, 1990, p. 6.) This legislative history supports our statement in Nicholas H. that the case now before us in which a biological father who is also a presumed father seeks "to perfect his claim" and to rebut the presumption of another man is precisely the kind of case "the Legislature had in mind" as an "`appropriate action'" where the presumption would be rebutted. (Nicholas H., supra,
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,
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,
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 *263 be only one biological father.' [Citation.]" (Maj. opn., ante,
For the same reason, the majority errs in asserting that if the Legislature "had intended to restrict the weighing process under section 7612, subdivision (b) to disputes between competing nonbiological fathers, it could easily have said so." (Maj. opn., ante,
Nor is the majority correct that section 7575 supports its conclusion. According to the majority, section 7575, subdivision (b) "`permits but does not require' a court to rely on blood test evidence in deciding whether to set aside a voluntary declaration of paternity signed on or before December 31, 1996." (Maj. opn., ante,
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. (§ 7541, subd. (a).) To paraphrase the majority," `[i]t is unlikely the Legislature would without explicitly so stating adopt a contrary rule'" that *264 test results do not necessarily rebut the nonconclusive UPA presumptions. (Maj. opn., ante,
The majority is also incorrect in assеrting that not "a single case" supports *265 my construction of section 7612, subdivision (a) (maj. opn., ante,
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,
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 *266 (b) of section 7612 which presumption "`on the facts is founded on the weightier considerations of policy and logic.'" (Maj. opn., ante,
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,
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...." (§ 7612, subd. (b), italics added.) By contrast, in Colorado, Hawai'i, Minnesota, and Nevada, the presumption based on scientific tests is just one of several presumptions stated in their version of section 7611, that is, their version of section 4 of the 1973 Act. (Colo. Rev. Stats. § 19-4-105; Hawaii Rev. Stats. § 584-4(a); Minn.Stat. § 257.55, subd. (1); Nev. Rev. Stats. § 126.051(1).) Notably, in the decisions the majority cites, the courts relied on this fact, and the fact that the same statute provided for the weighing of conflicting presumptions, in concluding that their state's presumption based on biology does not necessarily overcome the presumptions based on other factors.[22] For example, as one of the cited cases explained, "the original lodestar of [Minnesota's] parentage act" was "biological "paternity; thus, "[w]hen the parentage act was first adopted in [Minnesota], ... the effort was to find the biological father and then to adjudicate that person the legal father." (Matter of Welfare of C.M.G. (Minn.Ct.App.1994)
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,
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 *268 the termination of his parental relationship absent a showing of his unfitness as a parent"; a showing that termination is in the child's best interests, which is a lower standard, is simply not constitutionally sufficient. (Kelsey, supra,
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,
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,
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 Welfare and Institutions Code section 366.26, "should this court ever get to the stage where" it sets such a hearing. Thus, despite the language the court used in stating its finding that Paul is "the presumed father" the juvenile court and the parties fully understood and intended the court's decision to be a paternity determination that stripped Heriberto of his parental rights.[27]
*270 Indeed, although the majority states that the statutes and rules on which it relies authorize actions to determine the identity of a child's presumed father, its actual discussion recognizes that the cited provisions pertain to determinations of "paternity" and "legal" parenthood. (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 213, 230, 85 P.3d at pp. 9, 23.) Based on these statutes, the majority concludes that the juvenile court had discretion "to hear [a] paternity action at any time" after the dependency petition was filed. (Maj. opn., ante,
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,
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)
The majority's assertion that actual termination of Heriberto's "parental rights requires further proceedings" (maj. opn., ante,
Welfare and Institutions Code section 366.26, which the majority also cites, (maj. opn., ante,
Finally, section 7664, which the majority also cites, is also inapplicable for two reasons. First, like Welfare and Institutions Code section 366.26, Family Code section 7664 applies only in the context of adoption proceedings, which will never come about in light of the juvenile court's ruling. Second, Family Code section 7664 applies only to a "natural father." However, under the juvenile court's ruling, Heriberto cannot qualify as Jesusa's natural father. As explained above, a UPA proceeding establishes the "parent and child relationship" between "a child and the natural father" (§ 7610, subd. (b)), and the juvenile court's ruling here, which "is determinative for all [relevant] purposes" (§ 7636), establishes that Paul, not Heriberto, is Jesusa's "natural father." (§ 7610, subd. (b).) Thus, the majority is incorrect in stating *272 that actual termination of Heriberto's "parental rights requires further proceedings."[28]
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,
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,
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,
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,
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,
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,
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,
The majority is also incorrect regarding the effect of my construction where a child is "the product of rape." (Maj. opn., ante,
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,
The majority's claim that only a "small subset" of biological fathers is at risk under its holding (maj. opn., ante,
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 *277 father." (Maj. opn., ante,
Indeed, the majority's application of section 7611, subdivision (d), in this case amply demonstrates this fact. The majority finds that, although Paul has never claimed to be Jesusa's natural father, he qualifies as a presumed father under section 7611, subdivision (d), because Jesusa's mother took Jesusa to Paul's on weekends to be with Jesusa's half siblings. (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 210, 215, 85 P.3d at pp. 6, 10.) Thus, under the majority's analysis, Heriberto could have prevented Paul from qualifying as a presumed father under section 7611, subdivision (d), only by limiting Jesusa's time with her mother and half siblings. Such behavior, which the majority's conclusion encourages, would have been contrary to Jesusa's best interests.
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,
*278 Thus, the number of biological fathers both married and unmarried at risk under the majority's holding is far greater than the majority suggests. Under the majority's holding, all of these biological fathers no matter how law-abiding, loving and competent and no matter how well developed their relationship with their children are at risk of having their parental rights terminated by a court's subjective and discretionary determination that some other man who qualifies as a presumed father would be a better father. Because the majority's conclusion is not consistent with our statutes, the Legislature's intent, or constitutional requirements, I dissent.
II. HERIBERTO HAD A STATUTORY RIGHT TO BE PERSONALLY PRESENT.
Heriberto claims that under Penal Code section 2625, which sets forth certain statutory rights of prisoners with respect to actions involving their parental rights, the juvenile court erred in adjudicating the paternity issue and the dependency petition in his absence. Regarding adjudication of the petition, the majority agrees and holds that the court erred. I agree with that holding.[34] However, I disagree with the majority's holding that the juvenile court did not err with respect to the paternity determination.
Regarding the paternity determination, the majority asserts that Penal Code section 2625 requires a court to order a prisoner's production "only `where the proceeding seeks to terminate the parental rights of [the] prisoner' under Welfare and Institutions Code section 366.26 or Family Code section 7800 et seq. or `to adjudicate the child of a prisoner a dependent child.'" (Maj. opn., ante,
The majority is incorrect, because it misconstrues the statutory language. As relevant here, section 2625 does not, as the majority states, require the court to issue a production order only when the actual adjudication of dependency occurs. Rather, it provides that a juvenile court must: (1) "[i]n ... any proceeding brought under Section 300 of the Welfare and Institutions Code ... to adjudicate the child of a prisoner a dependent child of the court, ... order notice of any court proceeding regarding the proceeding transmitted to the prisoner" (Pen.Code, § 2625, subd. (b), italics added); and (2) issue a production order "[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" (Pen.Code, § 2625, subd. (d)). The juvenile court's paternity determination here was unquestionably a "proceeding regarding the [Welfare and Institutions Code section 300] proceeding" involving Jesusa. (Pen.Code, § 2625, subd. (b).) As explained above, our statutes and court rules *279 confirm this conclusion. (Welf. & Inst.Code, § 316.2; Cal. Rules of Court, rule 1413.) Indeed, the majority acknowledges that the dependency petition here could not be adjudicated "`without first identifying which man is the child's father.'" (Maj. opn., ante,
As this discussion demonstrates, my analysis does not, as the majority asserts, "fail[ ] to recognize" (maj. opn., ante,
Indeed, despite its analysis, in a footnote the majority concedes that a prisoner's right to be present under Penal Code section 2625 is not confined only to the proceeding where the actual dependency adjudication occurs. In this regard, the majority states its "view" that, under subdivision (b) of Penal Code section 2625, the right also applies to any "jurisdictional hearing" that "precede[s]" the formal adjudication of the petition. (Maj. opn., ante,
However, the majority fails to justify its conclusion that, under subdivision (b) of Penal Code section 2625, the right applies to such jurisdictional hearings, but "not to" paternity determinations. (Maj. opn., ante,
Nor is the majority correct that my construction would produce an "absurd result." (Maj. opn., ante,
The majority's fallback position that Heriberto actually "was absent for only a portion of the presumed father hearing" (maj. opn., ante,
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,
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 *282 available and dispositive of the issues of the case."' [Citations.]" (Santa Clara County Local Transportation Authority v. Guardino (1995)
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 section 7611, the statutes require us to address Jesusa's fate through provisions governing custody and termination of parental rights, not through the paternity determination that occurred here. Unlike the majority, which construes section 7612 in virtual isolation as if no other statute or legislative history tells us anything about the Legislature's policy decisions regarding biological paternity, I base my conclusion on section 7612 viewed in the context of the overall statutory scheme and its legislative history. My conclusion also rests on constitutional considerations that apply in light of what actually happened here, but which the majority refuses to acknowledge: that the juvenile court's order terminated Heriberto's parental rights. Thus, although I share the majority's concern, I cannot subscribe to its methods. The result produced here under the majority's construction ultimately can, and probably would, be produced through custody and termination proceedings without distorting our statutes governing parentage determinations, ignoring the Legislature's expressed intent, and rendering our statutes unconstitutional. Finally, unlike the majority, I conclude that where a biological father who is a prisoner files a paternity claim in a dependency proceeding and asks to be present when the claim is decided, permitting a court to reject the claim and thereby terminate his parental rights in his involuntary absence is contrary to statute. I therefore dissent.
NOTES
[1] Although "the statutory term `presumed father' is somewhat `cumbersome,'" we must "take the statutory nomenclature as we find it." (Adoption of Kelsey S. (1992)
[2] Our dissenting colleagues rely on the language in Penal Code section 2625, subdivision (b) that the court provide notice "of any court proceeding regarding the proceeding" to the prisoner and reason that the court must therefore supply notice (and order the prisoner's production) for every hearing in the course of the dependency proceeding. This construction, however, fails to recognize that "proceeding" refers not to just any proceeding, but only "where the proceeding seeks to adjudicate the child of a prisoner a dependent child of the court." (Pen.Code, § 2625, subd. (b), italics added.) In our view, the "proceeding regarding the proceeding" language is intended to encompass the jurisdictional hearing, which may precede the formal adjudication of the petition at the dispositional hearing, as well as the dispositional hearing. However, it cannot be read so broadly as to encompass a presumed fatherhood hearing, which usually arises outside of any "proceeding ... to terminate the parental rights of any prisoner" or "to adjudicate the child of a prisoner a dependent child of the court." (Pen.Code, § 2625, subd. (b); see, e.g., Dawn D. v. Superior Court (1998)
[3] Counsel conceded that this evidence was intended merely to rebut assertions in the minor's brief that Heriberto had offered insufficient evidence to support a threshold finding that he was the presumed father i.e., that he had presented "no evidence that he openly and publicly acknowledged paternity of Jesusa," had "claimed fatherhood of Jesusa to friends, relatives or neighbors," or "took formal steps to identify her to governmental agencies as his daughter." As counsel for the minor pointed out at oral argument, Heriberto made no offer of proof concerning the nature and quality of his bond with the child to supplement his biological relationship with her.
[4] All future statutory references are to the Family Code unless otherwise noted.
[5] We also said in Nicholas H. that the Legislature, by including the limiting phrase "`in an appropriate action,'" "had in mind an action in which another candidate is vying for parental rights and seeks to rebut a section 7611(d) presumption in order to perfect his claim." (Nicholas H., supra,
[6] Justice Kennard would rely on sections 7541 and 7554, which she concedes may be inapplicable here, as proof that the Legislature believes biology is the most weighty consideration of policy and logic. Yеt, if the Legislature had wanted to make a categorical exception for biology that did not rely "on the facts" of a particular case (§ 7612, subd. (b)), it could easily have said so. (E.g., Wilson ex rel. C.M.W. v. Estate of Williams (Tex.App.2003)
[7] Heriberto thus effectively seeks the rights of fatherhood without any of its responsibilities. But, as we have also noted, "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993)
[8] In Nicholas H., quoting a Court of Appeal decision, we described that policy as the "`state interest in preserving the integrity of the family and legitimate concern for the welfare of the child.'" (Nicholas H., supra,
[9] We also cautioned that the Court of Appeal, in assuming that natural necessarily meant biological in sections 7611 and 7612, had "read too much into the passages it selected" from our case law. (Nicholas H., supra,
[10] Under the dissent's construction of section 7551 et seq., in which genetic tests requested by any party or other person" `involved'" in the action would necessarily and conclusively rebut another man's presumption under section 7611, Heriberto's status as the biological father would necessarily and conclusively rebut Paul's presumption even if Heriberto were not a presumed father. (See dis. opn. of Chin, J., post,
[11] Under the dissenters' bright-line rule, in which biology is necessarily determinative, a juvenile court would be obliged to favor the biological father over any other presumed father, even if the child were the product of a rape. Like the Court of Appeal in In re Jerry P. (2002)
[12] In re Axsana S., supra,
[1] The majority also holds that the biological father was entitled to be present at the jurisdictional and dispositional hearings where the juvenile court declared the child a dependent of the court, but that the court's violation of this right was harmless. Although I agree with this analysis, I also conclude, as explained in part IV, post, that the court's jurisdictional and dispositional findings should be reversed for other reasons.
[2] Unless otherwise stated, all further statutory citations are to the Family Code.
[3] Both subdivision (a) of section 7541 and section 7554 are phrased negatively; that is, they state the result when a blood test shows that a man is not the father of the child. The reason: A blood test can only rule out the possibility that a man is not a child's biological father; it cannot show with complete certainty that a man is the biological father.
[4] The majority and Justice Chin's dissenting opinion disagree as to whether Paul also qualified as a presumed father by holding Jesusa out as his natural child. (Maj. opn., ante, 10 Cal.Rptr.3d at pp. 210, 215, 85 P.3d at pp. 6, 10; dis. opn. of Chin, J., post,
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)
[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)
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]." (§ 7551.) They remained so at least until they actually established their claim with proof. Thus, the juvenile court had discretion to order, and the parties had a right to demand, testing pursuant to section 7551.
[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." (§ 7554, subd. (a).) Moreover, as I have explained, the hierarchy of presumptions stated in section 7576, subdivision (e), establishes that a presumption under section 7555 based on biological рaternity outweighs the presumptions set forth in subdivisions (a) through (e) of section 7611.
Contrary to the majority's assertion, Steven W. v. Matthew S. (1995)
[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 Welf. & Inst.Code, § 316.2, subd. (b); Cal. Rules of Court, rule 1413(h).) Thus, the majority errs in stating that Heriberto asked only "to be declared the presumed father." (Maj. opn., ante,
[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. (§ 7576, subd. (e).) However, as I have explained, presumptions based on voluntary paternity declarations are subject to section 7554, which, like section 7541, subdivision (a), requires a court to determine the "paternity" of a presumed father "according[ ]" to test results showing that he "is not the father." (§ 7554.) Thus, although the Legislature has declared that the section 7576 presumption should be stronger than the other section 7611 presumptions, under the majority's conclusion, it is weaker.
[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,
[12] (Jackson v. Jackson (1967)
[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)
[15] As my analysis amply demonstrates, I have not, as the majority incorrectly asserts, merely "assum[ed] that natural necessarily mean[s] biological" based on a few "'selected'" passages "from our case law." (Maj. opn., ante,
[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" (§ 7574, subd. (b)(5), italics added) and a signed statement "by the father ... that he is the biological father of the child." (Id., subd. (b)(6), italics added.) Thus, contrary to the majority's analysis, the provisions relating to the presumption based on a voluntary declaration of paternity are part of an overall statutory scheme that demonstrates the Legislature's intent to make established biological paternity the controlling factor in dealing with competing presumptions.
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." (§ 7573.) By focusing on section 7575 and ignoring the statute that expressly governs the rebuttal of presumptions based on a voluntary paternity declaration section 7576 the majority's analysis "compar[es] apples and oranges." (Maj. opn., ante,
[21] Ironically, notwithstanding its criticism of my analysis, the majority adopts 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)
[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 biological 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...." (Pen.Code, § 2625, subd. (b).)
[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,