Opinion
Pеtitioner appeals the denial of his petition to establish a parental relationship, as a third natural parent, with his three-year-old niece (child). The trial court ruled that petitioner met the statutory criteria of a
We conclude the trial court’s determination of no detriment under section 7612, subdivision (c) appears to have derived from an improperly narrow construction of the statutory language, resulting in the trial court’s failure to consider all relevant factors under the statute. Because the rebuttal of petitioner’s presumed parent status was contingent on the trial court’s evaluation of detriment under section 7612, subdivision (c), we will reverse the order denying the petition and remand for reconsideration.
I. STATUTORY FRAMEWORK
The Uniform Parentage Act (UPA; § 7600 et seq.), specifically sections 7611 and 7612, governs this action. The UPA defines the “ ‘[p]arent and child relationship’ ” as “the legal relationship existing between a child and the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations.” (§ 7601, subd. (b).) The paternity presumptions of the UPA “ ‘are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child.’ ”
(In re Nicholas H.
(2002)
Here, the trial court determined petitioner to be a presumed parent of child pursuant to section 7611, subdivision (d), which provides: “A person is presumed to be the natural parent of a child if the person . . . [¶] . . . [¶] . . . receives the child into his or her . . . home and openly holds out the child as his or her . . . natural child.” (§ 7611, subd. (d).) Neither side contests this determination on appeal. The trial court found this presumption was rebutted, however, by clear and convincing evidence under section 7612, subdivisions (c) and (d) — a finding petitioner claims was erroneous for several reasons.
In enacting the current version of section 7612, subdivisions (c) and (d),
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the Legislature made express findings: “(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm. [¶] (b) The purpose of this bill is to abrogate In re M.C. (2011)
II. TRIAL COURT PROCEEDINGS
Petitioner initiated proceedings to establish parentage of child pursuant to sections 7611, subdivision (d) and 7612, subdivision (c). Petitioner is child’s biological uncle. The mother (mother) is child’s mother and the respondent. Father is petitioner’s half brother. The court held an evidentiary hearing at
The following facts, estаblished at the hearing on August 20, 2014, are not in dispute. Petitioner and mother had been in a relationship for many years when mother conceived child. A separate paternity action, brought by mother, and genetic test established that father was child’s biological father. Father abandoned mother during her pregnancy. He has been incarcerated for extended periods since child’s birth; in total he has had approximately seven or eight hours of contact with child. Mother has sole legal and physical custody of child, with no visitation to father. An unresolved Child Protective Services (CPS) case, which arose out of the brief window of contact between father and child, remained open as of the evidentiary hearing on petitioner’s parentage action.
Aware that he was not the father, petitioner determined to raise child as his daughter. During mother’s pregnancy, petitioner accompanied her to prenatal appointments as well as parenting and birthing classes. Petitioner was present and cut the umbilical cord at child’s birth in November 2012. Petitioner moved in with mother immediately after child’s birth and lived with mother and child for the first six months, during which time petitioner helped care for child. Petitioner testified that he considered himself to be “[i]n every way father. I helped feed, took turns with the middle of the nights, waking up, bonding, singing, goodnights.” In May 2013, petitioner moved to his own apartment but continued to see child on average three days and two to three nights per week. Petitioner held child out as his daughter to all but a small set of family and friends who knew he was not the biological father.
In November 2013, when child was about one year old, petitioner spanked child during a visit, leaving bruises. Petitioner testified about the incident: “I made the mistake to spank my daughter. ... I was completely unaware of my strength or her sensitivity. A few bruises were left, and . . . quite an emotional scar on me once I saw the pictures. And CPS was involved due to a mandated reporter.”
Mother noticed the bruising and called her counselor, who contacted CPS. CPS removed child from mother for several days. In the resulting investigation, CPS found petitioner had caused the bruises (which he admitted) and had tested positive for illegal substances. CPS returned child to mother’s custody subject to a case plan that prohibited contact between petitioner and child for six months. Mother and petitioner adhered to the plan, during which time child lived exclusively with mother. After the six-month no contact period and consultation with therapists, mother allowed petitioner to resume visitation in the range of five to 20 hours each week. Petitioner’s visitation
Mother testified that she “would agree that [petitioner] has been the male role model in [child’s] life.” 3 “[Child] does refer to him as father,” she stated. Mother was aware that petitioner had “issues including substance abuse” but “believed he was clean and sober” until the November 2013 incident, when she became aware he had relapsed. As of the hearing, mother believed petitioner had regained and maintained his sobriety.
Regarding the parentage action, mother’s testimony was that “she absolutely acknowledges [petitioner’s] involvement and support оf [child] in numerous ways, but is in a position where she is concerned that if she were to absolutely consent to this proceeding, that . . . might affect her custodial rights in the future.” Due to the November 2013 incident, which left “remarkable bruises” on child, CPS was “very clear . . . about the parameters of petitioner’s involvement,” causing mother to feel “very tom” and afraid that even though “she has continued to engage with the child therapist... in hopes that she’s doing everything right by allowing [child] to resume a relationship [with petitioner], ... at some point, some social worker can come into this picture and say, you know ‘you shouldn’t have been allowing for that, so we’re taking the child away.’ ” Regardless of the outcome of the parentage proceeding, mother had “no intention” of keeping child from petitioner and would continue to allow visitation as long as he remained drag free.
Father did not testify or interpose a viewpoint during the proceeding, except to disclaim at one point petitioner’s statement that father had shown no interest in being involved with child as a father. Petitioner testified on the subject of detriment if he were denied parentage. He stated it was obvious to anyone who had seen them together “that [child] recognizes me as dad . . . that she asks for me up to several times a day in order to spend time together.” Petitioner described their bond as “an emotional imprint of father and daughter,” which would suffer if he did not have “full authority to be there . . . and have me legally and safely protect [child] if something were to go wrong if I don’t have those parent rights.” Petitioner also testified that if child was not a “proper heir,” he would not be able to name her for benefits, such as life insurance, and that if mother became incapacitated or unable to care for child, she would have “no father figure to go with” and would be at risk of entering the foster system, “which is, number one, the most dangerous thing ever in all of our opinions as far as I’ve been told.”
In closing argument, petitioner, who was self-represented, objected that testimony about his purported drug use or relaрse comprised “accusations and hearsay” and should not have been presented. 4 He argued the evidence presented by both sides showed he had satisfied the test to be determined a presumed parent pursuant to section 7611, subdivision (d). He pointed to the responsibilities he would have if granted parentage, including financial, and the fact that as a parent, he would be held accountable for any potential mistakes. He also argued that under the statutory scheme, being named a third parent would not impinge upon the rights of child’s mother or biological father.
The trial court stated its findings on the record. The court first determined that petitionеr satisfied his burden of proof under section 7611, subdivision (d) to establish himself as a presumed parent of child. The court then made findings under the clear and convincing standard of section 7612, rebutting the presumption. The court found that recognizing only two parents, mother and father, would not be detrimental to child under section 7612, subdivision (c). The court reasoned there would be no harm from “removing the child from a stable placement,” because that removal had already occurred “some time ago.” Based on this finding, the court concluded that pursuant to section 7612, subdivision (d), petitioner’s presumption of parentage was rebutted by the earlier judgment establishing father as а natural parent.
The trial court also made findings on specific factual issues. It credited mother’s testimony that she would continue to support the relationship between petitioner and child. It noted the possibility of consequences adverse to child’s best interest if the juvenile court were to consider mother’s actions to be inconsistent with the best interest of the child.
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And it deemed
The court denied petitioner’s petition to be recognized as a natural third parent of child. Petitioner timely appealed the court’s ruling following entry of the written order.
III. DISCUSSION
A. The Trial Court’s Interpretation of “Stable Placement” Under Section 7612, Subdivision (c) and Consideration of “All Relevant Factors”
Petitioner contends the trial court erred in interpreting the statutory mandate to consider the “harm of removing the child from a stable plaсement” as referring only to the living arrangement and not to the visitation or informal custody relationship between petitioner and child. By narrowly interpreting “stable placement,” petitioner contends the trial court failed to consider “all relevant factors” in evaluating the detriment child would suffer if she were removed from the stable relationship she has with petitioner. Because the issue presented involves the interpretation of a statute and the application of that statute to undisputed facts, it is subject to this court’s independent review.
(City of Saratoga
v.
Hinz
(2004)
Mother, appearing in propria persona, submitted a respondent’s brief stating her concеrns regarding the petition and providing further factual development on the relationship between the parties and her actions on behalf of child since the trial court’s ruling. This response contains no citation to the record and appears to refer mainly to facts outside of the record or that occurred after the fact. Under California Rules of Court, all appellate briefs must “[s]upport any reference to a matter in the record by
Mother, as a self-represented party, is not exempt from these rules.
(Nwosu
v.
Uba (2004) 122
Cal.App.4th 1229, 1246 [
In finding there would be no detriment to child based on “the harm of removing the child from a stable placement” under section 7612, subdivision (c), the trial court stated “that [removal] has already occurred well over— well, back in May of 2013, or perhaps that was November of 2012, some time ago. . . . [C]ertainly the Court’s ruling today would not be removing the child from that environment.” Petitioner contends these references are to the fact that petitioner moved out of mother’s house in May 2013, or that he was not permitted to see child for six months starting in November 2013.
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Petitioner argues this interpretation of the statute was flawed and contrary to the statutory purpose of the presumed parent presumptions, because it is the child’s relationship with the presumed parent, not simply their living arrangement, that must be considered. (See, e.g.,
R.M. v. T.A.
(2015)
The phrase “stable placement” is not defined in the Family Code, nor do any published cases interpret this recent addition to section 7612. We need not attempt to construe “stable placement” as a stand-alone phrase, however, because as a matter of basic statutory interpretation, the words must be construed in context. The “fundamental task” of the court in any act of statutory interpretation “is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.”
(Estate of Griswold
(2001)
In the amended section 7612, subdivision (c), the phrase “harm of removing the child from a stable placement” is in reference to the relationship “with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.” (§ 7612, subd. (c).) Any consideration of the child’s “stable placement” therefore must be in rеlation to the ongoing source or sources of fulfillment of the child’s physical and psychological needs for care and affection. Properly viewed in the context of the UPA provisions governing the parentage presumptions, these sources of care and affection may arise out of the child’s living arrangement, but may equally arise out of an alternative arrangement. Thus, in R.M. v. T.A., the appellate court affirmed the unrebutted presumption of parentage for the mother’s boyfriend, even though he had never lived with the young child and the mother had conceived with the stated intent to raise the child as a single mother. (R.M. v. T.A., supra, 233 Cal.App.4th at pp. 780-781.) The аppellate court explained that although the mother “may have initially intended to raise Child as a single parent, . . . during the first two years of Child’s life Mother’s relationship with RM developed such that RM, with Mother’s full support, undertook a parental role and established a parent-child relationship with Child.” (Id. at p. 781, italics added.)
The critical distinction is not the living situation but whether a parent-child relationship has been established.
8
“ ‘[T]he premise behind the category of
This interpretation of “stable placement” is consistent with a recent decision of the Fourth District interpreting “ ‘an appropriate action’ ”
(In re Donovan L.
(2016)
We view the trial court’s finding that removal “already occurred” and that the court’s ruling “would not be removing the child from that environment” to be incongruous with the undisputed evidence of petitioner’s ongoing role in caring for child and her emotional bond to him as a father. (See § 7612, subd. (c) [court shall consider the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time].) We conclude that the trial court appears to have misconstrued the “harm” factor of section 7612, subdivision (c), interpreting the statutory language as pertaining primarily or solely to child’s living arrangement, and in so doing, failed to consider “all relevant factors” when determining detriment to the child.
B. The Trial Court’s Finding of No Detriment in Denying Third Parent Status to Petitioner Based on Two Existing, Natural Parents
Petitioner contends the trial court abused its discretion in finding that recognizing only two parents would not be detrimental to child, leading to the rebuttal of the presumption of parentage. Whether a particular case is “ ‘an appropriate action’ in which to rebut the presumption of presumed parenthood ... is generally a matter within the discretion of the superior court.”
(Elisa B. v. Superior Court
(2005)
Petitioner argues the court’s findings under section 7612, subdivisions (c) and (d) were inconsistent with California’s policy in favor of recognizing two parents for a child. Petitioner essentially contends that father’s invоluntary adjudication as the biological father of child is insufficient to serve the statutory purpose and state interest behind the two-parent interest, because father never sought to be recognized as child’s presumed father, has had no parental relationship with child, and has no legal or physical custody, or visitation. He argues that if anything were to happen to mother, it is unlikely father would willingly take custody of child — if he were not incarcerated at the time — or that CPS would not prevent him from doing so. Petitioner contends that in reality, child only has two real parents, and one of them is petitioner.
We recognize that ensuring children have two parents is an important policy concern furthered by the UPA.
(In re D.M., supra,
We find petitioner’s policy argument regarding the preference for child to have two “real” parents is germane to the trial court’s evaluation of detriment
We do not find a similar assessment is required under section 7612, subdivision (d), because a finding under section 7612, subdivision (d) follоws, if at all, a finding under subdivision (c). (§ 7612, subd. (d).) Whereas subdivision (c) requires consideration
in an appropriate action
and based on
all relevant factors,
which in some instances will include whether “recognizing only two parents” confers the benefits generally associated with establishing two parents for a child, there is no equivalent weighing of factors under subdivision (d). The trial court’s inquiry pursuant to section 7612, subdivision (d) is much narrower and only requires the court to determine whether there is clear and convincing evidence of a judgment of paternity. (Cf.
Nicholas H., supra,
IV. DISPOSITION
The order denying petitioner’s request to be deemed a third parent to child is reversed. The matter is remanded for a hearing to reconsider the issue of detriment under Family Code section 7612, subdivision (c) consistent with this opinion, the outcome of which will determine whether the action is an appropriate one for finding that more than two persons with a claim to parentage are parents, or whether petitioner’s presumed parent status is rebutted under Family Code section 7612, subdivision (d). Petitioner is entitled to costs on appeal.
Notes
Unspecified statutory references are to the Family Code.
The amendments to section 7612, subdivisions (c) and (d) were part of a broader Senate bill (Sen. Bill No. 274 (2013-2014 Reg. Sess.)) that amended various sections of the Family Code.
Portions of the referenced testimony were statements made by mother’s counsel on mother’s behalf, by offer of proof. Mother was present for the testimony.
Petitioner argued that the doctrine of estoppel precluded mother from raising the drug use issue, because neither CPS nor the district attorney sought to prosecute him and thus that issue had “already been decided.”
The court’s statements do not reflect a clear finding on this issue, noting only that it had “consider[ed] the potential risk of custody to the mother if she were to take actions that the juvenile court might consider inconsistent with the best interests of the child given the prior
Our inability to consider new and unsupported facts in the appellate context does not prejudice mother from seeking to introduce any relevant facts at the hearing on remand.
The trial court likely misspoke when it stated “November of 2012” instead of November 2013, as November 2012 is when child was born.
We note that California courts have used a similar set of terms in the juvenile dependency context when determining a “de facto parent.” (See, e.g.,
In re B. G.
(1974)
The parties do not dispute that there is a preexisting judgment establishing father’s paternity of child.