R.M., Respondent, v. T.A., Appellant.
D064922
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 1/27/15
CERTIFIED FOR PUBLICATION; (Super. Ct. No. D528261)
Law Office of Leslie Ellen Shear, Leslie Ellen Shear and Julia C. Shear Kushner, for Appellant.
R.M., in pro. per., for Respondent.
In this family law proceeding, T.A. (Mother) appeals from a judgment finding that R.M. (RM) is the presumed father of Mother‘s biological daughter (Child). Mother conceived Child through artificial insemination procedures, and RM is not the biological father. The trial court declared RM to be Child‘s presumed father by applying the
Mother claims she chose to be a single parent of Child and raises numerous constitutional and other legal challenges to the manner in which the presumed parent statutory scheme was applied in her case. Based on the fundamental constitutional right to parent one‘s child without interference, she requests that we establish a rule that a decision to form a single parent family should be afforded the same constitutional protection as a two parent familial arrangement. She also asserts the standards associated with the presumed parent statute do not adequately protect the constitutional rights of a single parent “by choice.”
We hold that application of the presumed parent statutory scheme in this case did not constitute an unconstitutional interference with Mother‘s fundamental right to parent her child. We conclude (1) the
Mother also contends the trial court misunderstood and misapplied the law, including by (1) evincing a judicial preference for a two parent familial arrangement rather than affording equal weight to her single parent choice, and (2) stating the parentage presumption in this case was not rebuttable because no other person was seeking presumed parent status. As we shall explain, we reject these contentions of reversible error.
Finally, interspersed with her various constitutional and other legal challenges, Mother in effect asserts there is insufficient evidence to support the court‘s presumed parent finding. As set forth above, we first independently review Mother‘s contentions of legal error, and then consider her claim that the court should have weighed the facts in a different manner, which in essence is a challenge to the sufficiency of the evidence.2 We hold the evidentiary record supports that RM is Child‘s presumed parent and that the presumption was not rebutted.
Mother resides in San Diego, and RM lives in New Orleans, Louisiana. They each own homes in their respective states and were never married. They met in 2004 in New Orleans while Mother was stationed there in the Navy between 2003 and 2005. After Mother returned to San Diego, Mother conceived Child by artificial insemination procedures with the sperm of an anonymous donor. Child was born in San Diego in March 2008, and five months later Mother retired from the Navy. During the first two years of Child‘s life, Mother and RM maintained a long distance relationship, during which Mother and Child regularly stayed with RM at his Louisiana home. In July 2010, Mother gave birth to another daughter (Second Child) in San Diego; this child was conceived naturally and is RM‘s biological child. Mother ended her relationship with RM in 2010. Mother does not dispute that RM has parental rights as to his biological child, but claims he has no parental rights concerning Child.
In March 2011, RM filed a petition to establish a parental relationship between himself and Child. (
Mother testified that she and RM had ended their relationship before she moved back to San Diego. However, after she had been undergoing artificial insemination treatments for about one year, they started dating again. According to Mother, RM was not involved in the treatments and she did not use his sperm during the treatments. RM testified he thought Mother was trying to get pregnant with his sperm; he provided his sperm to a San Diego sperm bank for this purpose; and he did not discover she did not use his sperm until she told him after she was pregnant.5
RM made several trips to visit Mother in San Diego before and at the time of Child‘s birth. He was present at a sonogram, attended a birthing class with Mother, drove Mother and Grandmother to the hospital for Child‘s birth, and was at the hospital when Child was born. Grandmother (but not RM) stayed with Mother during the actual birth. While Mother was recovering, RM stayed with Child during the first two hours of her life in the Neonatal Intensive Care Unit. He also accompanied Child when she had to leave the hospital room for hearing tests and other procedures, and spent the night at the hospital during Mother‘s and Child‘s stay there.
According to RM, he was generally recognized by the hospital staff as Child‘s father. He acknowledged he was not listed on the birth certificate as Child‘s father, and he did not object when Mother told hospital staff that Child was conceived through a sperm donor and thus there was no father to list on the birth certificate. He also acknowledged that he signed a declaration of paternity at the hospital for Second Child but did not do this for Child. He explained that at the time of Child‘s birth no one offered him this form and he did not know about it.
RM submitted evidence delineating funds he spent from August 2007 through May 2011 to prepare for Child‘s birth and to help provide for Child after her birth, including for the purchase of maternity clothes, nursery supplies and furniture, other children‘s items (i.e., a car seat, playpen, high chair, swing set, sand box, and club house), children‘s books, clothes, diapers, toys, videos, other gifts and supplies, Christmas and birthday parties, food, vacations and other outings, and repairs at Mother‘s home. In May 2008, RM filled out an employment-related life insurance policy form that designated Child as his daughter and named her as the primary beneficiary, and designated Mother as his fiancée and a 50 percent secondary beneficiary. In March 2009, RM named Child as a beneficiary on a different insurance policy application.
Mother did not dispute that she regularly visited RM in Louisiana and stayed at his home with Child during the two years after Child‘s birth. On some occasions Grandmother (who lived in Arizona) accompanied Mother and Child on these trips and stayed with them at RM‘s home. According to Mother, she would typically stay in Louisiana with RM for about two to six weeks at a time, and then return to San Diego for a couple of months. She testified that she and Child were in Louisiana in 2008 in May, June, October, and December; in 2009 in February, March, August, and from October through December; and in 2010 from February to April. RM testified he would visit
RM‘s Louisiana home was equipped with a high chair for Child, and RM and Mother turned RM‘s office into a playroom for Child. When Mother and Child stayed with RM in Louisiana, the couple shared grocery shopping duties. In 2008 Mother filed state income taxes in Louisiana as a “part-year resident“; at some point she set up a college savings plan in Louisiana for Child; during a visit in August 2009 she acquired a Louisiana driver‘s license and registered her car in Louisiana; and she had her mail temporarily forwarded to RM‘s home during visits in December 2009 and February 2010. During the December 2009 visit, Mother discovered she was pregnant with Second Child.
RM presented evidence showing numerous activities and outings he engaged in with Child, and he submitted numerous photographs depicting Child‘s interactions with him and his family. For example, RM, Mother, and Child attended Mother‘s retirement ceremony in August 2008; went on a vacation to Florida in the summer of 2008 with RM‘s family and friends; participated in an alligator swamp tour in the fall of 2008 in New Orleans; celebrated Halloween and Christmas in 2008 in Louisiana; were together for Mardis Gras and Child‘s birthday in 2009 in Louisiana; attended a circus in New Orleans in the summer of 2009; celebrated Thanksgiving and Christmas in Louisiana in 2009; rode in the Mardi Gras parade in early 2010; and held a birthday party for Child at a New Orleans park in March 2010 when Child turned two years old.
The photographs submitted by RM depicted Child and RM together, as well as Child with a variety of RM‘s family members. These included pictures taken of Child
RM also introduced evidence of cards and artwork projects he had received from Mother on behalf of Child that identified him as Child‘s father. In February 2009, Mother mailed RM a Valentine‘s Day card from San Diego to Louisiana; the envelope is addressed to “Dad” and the enclosed card states “I [heart symbol] U Dad” and is signed “Love, [Child].” In May 2009, Mother and Child made RM a t-shirt; the t-shirt states “Child [heart symbol] Dad” and contains handprints and footprints; and in the summer of 2009 RM wore this t-shirt in a professional portrait taken of RM and Child. In June 2009, Mother gave RM a card for his birthday that stated “You‘re the best, Daddy!” and that was signed “Love, [Child].”
RM testified he and Mother attended church with Child in Louisiana; they held themselves out as a family at church; and their names were listed together in the church directory using his last name for both of them as if they were a married couple. In April 2010, Mother registered Child to attend a program two to three days a week at RM‘s church in Louisiana that would start in the fall. On the registration form, Mother identified Child‘s father as RM and Child‘s address as RM‘s address.6 On April 21, 2010, Mother left Louisiana and returned to San Diego, and did not thereafter go back to Louisiana.
In June 2010, around the time of Father‘s Day, Mother mailed RM several items, including a card with large cut-out letters stating “Dad” and signed by Mother with Child‘s name; a cut-out paper tie with “Dad” written on it; and a card stating “Daddy” and
When Mother gave birth to RM‘s biological child (Second Child) in July 2010, RM came to San Diego, although according to Mother he did not stay at Mother‘s residence. On August 14, 2010, RM and Mother had professional family portraits taken for the occasion of Second Child‘s birth, one depicting RM, Mother, Child and Second Child together, and others showing RM with the two daughters together and with each daughter alone.8
RM testified that although things were tense between him and Mother after she left Louisiana in April 2010, he did not realize their relationship was over until October 2010 when he was in San Diego for Halloween and was served with court papers concerning Second Child. Mother acknowledged that RM e-mailed her with requests to visit with Child after she left in April 2010. RM testified he and Mother had numerous discussions about him coming to San Diego to visit Child but Mother would tell him not to come, and after October 2010 Mother did not let him see Child. Mother testified RM
According to RM, in March 2012 he received a middle-of-the-night phone call during which Child (then age four) was screaming that she wanted her daddy and missed her daddy. Mother acknowledged the phone call was made when she accidentally pushed RM‘s number on her cell phone, and stated Child was experiencing “night terrors” but was not screaming for daddy.
To corroborate his claims, RM presented testimony from a mutual Louisiana friend, and RM‘s brother, pastor, and neighbor. RM‘s brother testified that Mother referred to RM as Child‘s father, Child called RM “daddy,” and the brother considered Child his niece. The pastor testified that RM, Mother, and Child attended numerous church activities during which they acted as a couple who were coparenting Child, and RM and Child acted as if they were father and daughter. RM‘s neighbor testified that during neighborhood get-togethers Mother referred to RM as Child‘s father, RM referred to Child as his daughter in Mother‘s presence, and Child called RM “Dad” or “Daddy.” The neighbor often saw RM caring for Child, and the mutual friend testified that on a “girls’ night out” Mother left Child with RM. In contrast, Mother presented testimony from Grandmother and two of Mother‘s friends (one who lives on the East Coast and the other in San Diego) who testified they had numerous discussions with Mother about her decision to be a single parent; RM was not involved in Mother‘s artificial insemination process; and they never heard RM being referred to as Child‘s father.
In its detailed statement of decision, the trial court noted that RM “was, at one time, a substantial part of [Child‘s] life and appears motivated to resume that relationship,” whereas Mother “appears motivated to be a single parent.” The court further observed that Child‘s “conception was the culmination of a substantial emotional and financial investment by [Mother] to become a single parent,” and thereafter Mother‘s multiple visits to RM caused Mother and Child to become “substantial stakeholders at [RM‘s] home, family, and community in Louisiana.”
The court recognized that it was significant that RM did not seek to have his name on Child‘s birth certificate, nor did he acknowledge he was Child‘s father when given an opportunity to do so at the hospital. However, the court delineated other evidence showing that RM had satisfied the presumed parent requirements. The court cited RM‘s multiple trips to San Diego to help Mother during her pregnancy, and the fact he was present during Child‘s birth, expressed concern for her well-being, stayed every night at the hospital to be near Mother, and paid pregnancy and birth expenses “commensurate with his ability to do so.” Further, the court assessed that the “record was replete with evidence” that, for as long as Mother permitted him to do so, RM cared for Child and received her into his home, family, and community.
The court found that RM “appear[ed] to have lovingly acknowledged, without reservation, [Child] as his child to his entire family and community in Louisiana.” The court determined that RM promptly took legal action to obtain custody of Child when he learned in late 2010 that Mother had ended their relationship and intended to keep Child from him. Although RM had not paid child support, the court found that he had been “generous with [Child] while he was allowed to do so,” and given that Mother was refusing contact between Child and RM and returned RM‘s gifts and cards for Child, it was questionable how much, if any, support Mother would have accepted from RM. The court noted there had been some references to domestic violence during the testimony, but found allegations of abuse were not credible.
After finding that RM had carried his burden to establish that he is a presumed father under
DISCUSSION
I. Governing Law
A. The Fundamental Right To Parent and the Policy Supporting Maintenance of Established Parental Relationships
It is has long been established that parents have a fundamental liberty interest in the care, custody, and control of their children. (Troxel v. Granville (2000) 530 U.S. 57, 65 (Troxel).) In Troxel, the high court confirmed that this constitutional principle extends
The courts also recognize that a child‘s best interests is a core public policy concern that underlies statutory enactments and judicial decisions in this arena. This concept was implicitly recognized in Troxel when the court emphasized there was no allegation that the mother was unfit and that “there is a presumption that fit parents act in the best interests of their children.” (Troxel, supra, 530 U.S. at p. 68, italics added.) The state‘s legitimate interest in the welfare of children has given rise to numerous statutes in a broad array of contexts that seek to ensure a child‘s well-being while also protecting the liberty interests of parents to raise their children without undue interference by the state or third parties.
In S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 (S.Y.), the court applied the
The S.Y. court also rejected the adoptive mother‘s claim that declaring S.Y. to be a presumed parent infringed upon her constitutional right to make decisions concerning the care, custody, and control of her children. (S.Y., supra, 201 Cal.App.4th at pp. 1026, 1037.) The court reasoned there was no constitutional infringement because, unlike the question of grandparent visitation addressed in Troxel, declaring S.Y. to be a parent did not extend rights to a nonparent. (Id. at p. 1037.) Likewise, Charisma R., supra, 175 Cal.App.4th 361, rejected a biological mother‘s constitutional challenge to application of the parentage presumption to her former same-sex partner, reasoning: “[Biological mother‘s] claim is essentially that as the biological mother, and in the effective absence of a biological father, she has a fundamental right to decide whether [the child] has a second
B. Standards and Principles Relevant to the Section 7611(d) Parentage Presumption
The
The parentage presumption “is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing
Consistent with the principle that presumed parent status may be afforded to a person who is not the biological parent, a lack of biological parentage does not alone require that the presumption be deemed rebutted. (Nicholas H., supra, 28 Cal.4th at pp. 58-59, 62-63; Elisa B., supra, 37 Cal.4th at pp. 122, 125; In re Jesusa V. (2004) 32 Cal.4th 588, 603-604, 606-607.) Rather, the court should evaluate all the circumstances to see if it is fitting for the presumption to be rebutted in the particular case. (In re Jesusa V., supra, at p. 606; In re T.R. (2005) 132 Cal.App.4th 1202, 1212.)
Relevant to the application of the
Thus, case authority reflects that judicial application of the
II. Mother‘s Challenges Based on the Constitutionally Protected Right To Parent
Mother argues she has a constitutional right to form a single parent family, and even though that right may not be absolute, it should be balanced against any interest in promoting two parent families. She requests we hold that the right to create and maintain a single parent family is constitutionally protected in the same manner as a two parent choice, and that any law restricting the single parent choice must be based on a compelling state interest, narrowly drawn, and use the least restrictive means possible.
Mother‘s constitutional claims are unavailing given that the policy underlying the
Further, as stated in S.Y., finding a person to be a presumed parent does not equate with the interference with the right to parent at issue in Troxel because the latter involved the question of visitation by a nonparent. (S.Y., supra, 201 Cal.App.4th at p. 1037.) Presumed parent status is afforded only to a person with a fully developed parental relationship with the child; hence, the presumption adds to, but does not trample upon,
When raising her constitutional challenges, Mother asserts that there should be an “articulable distinction” between a presumed parent and other familial figures and caregivers, and criteria should be developed so that single parents do not have to avoid romantic entanglements or new marriages because of the risk of presumed parenthood. The presumed parent statute incorporates these distinctions and criteria. A person claiming presumed parent status under
For example, the courts have rejected application of
Application of the
Thus, the presumed parent statutory scheme, which imposes strict holding-out and receiving-into-the-home standards and allows rebuttal of the presumption in appropriate cases, incorporates mechanisms to ensure that a parent who makes a decision to be a single parent will not subsequently be required to share that parenting with another person unless the court is satisfied the parent permitted the person to engage with the child at a level that transforms the interaction into a full, openly acknowledged two parent relationship.
We decline Mother‘s request that we elevate the single parent choice to a constitutional stature that would alter the presumed parent principles developed by the Legislature and courts, including the preponderance of the evidence standard required to establish the presumption. This area of the law involves the balancing of multiple interests, including the child‘s welfare and the rights and obligations of parental figures in a wide variety of contexts. The
III. Mother‘s Challenges Based on Trial Court‘s Understanding and Application of the Law
Mother asserts that when making its rulings, the trial court misconstrued the law to favor two parent families; it gave little or no weight to her constitutionally protected right to form and maintain a single parent family and instead “curtly dismissed her constitutional claims without careful analysis“; and it erroneously ruled she did not have the right to rebut the parentage presumption because no other person was requesting presumed parent status.
We agree there is no rule precluding rebuttal of the presumption in all cases where only one person is seeking presumed parent status. Although the courts have recognized that rebuttal may be inappropriate in a particular case, including when there is no other person requesting presumed parent status, the courts have not established a broad rule precluding rebuttal as a matter of law in every case involving this circumstance.
For example, in Nicholas H., the court held that in a case where no other person was seeking to be recognized as the child‘s father and the person had fully and willingly assumed a parental role, the trial court properly declined to find the presumption necessarily rebutted merely because the presumed father was not the biological father. (Nicholas H., supra, 28 Cal.4th at pp. 58-59, 63.) In L.M., supra, 208 Cal.App.4th 133 (the case cited by the trial court here), this court recognized the two parent policy and held that the trial court properly found rebuttal inappropriate in a case showing a “same-sex couple who decided together to bring the Child into their family to jointly raise him, and no other person is competing for the position of the child‘s second parent.” (Id. at p. 145.) However, we also noted that the determination of whether it is appropriate to rebut a parentage presumption in a particular case is generally a matter of the trial court‘s discretion and the determination “depends on the unique facts of each case . . . .” (Id. at p. 145, fns. 9 & 10.)
These decisions reflect that Mother cannot rebut the presumption solely because RM is not Child‘s biological father and that the lack of a second parent is a relevant consideration on the rebuttal issue. But they do not establish a rule that rebuttal of the presumption is necessarily precluded in all cases where only one person is seeking presumed parent status. To the extent the trial court ascertained that the presumption was unrebuttable in this case as a matter of law, this was incorrect.
However, the court‘s statement that it did not view rebuttal as permissible in this case caused no prejudice to Mother because the court acceded to RM‘s request to assume the presumption was rebuttable and to make appropriate findings. The court found that Mother had not rebutted RM‘s presumed parent status for the same reasons that established the existence of the presumption, and (as we shall discuss below) the record supports this finding.
We also reject Mother‘s claim that when deciding whether the presumption had been established or rebutted, the trial court focused unduly on the two parent policy and failed to give adequate weight and consideration to her right to form and maintain a single parent family. In its written statement of decision, the trial court stated its understanding that Mother was motivated to be a single parent and had expended substantial resources to achieve this result; reviewed numerous factors relevant to
Further, there is nothing to suggest that the court applied the two parent policy to lighten RM‘s burden to show his parental relationship. To the contrary, when the court referred to a policy in favor of providing a child with two parents, this was in the context of discussing whether the parentage presumption was legally rebuttable in this case, not whether RM had carried his burden to establish his presumed parent status. To the extent the court may have considered the two parent policy on the rebuttal issue, this would not have improperly undermined Mother‘s single parent rights because at this juncture the court had already found that RM had shown Child was in fact being parented by two parents with Mother‘s support.
IV. Sufficiency of the Evidence
To the extent Mother challenges the sufficiency of the evidence to support the court‘s presumed parent finding (see fn. 2, ante), the record supports the court‘s decision.
On appeal, we review a trial court‘s finding of presumed parent status under the substantial evidence standard. (S.Y., supra, 201 Cal.App.4th at p. 1031; In re T.R., supra, 132 Cal.App.4th at p. 1212.) We view the evidence in the light most favorable to the ruling, giving it the benefit of every reasonable inference and resolving all conflicts in
The record shows that RM was at the hospital in San Diego assisting Mother when Child was born; two or three months after the birth, Mother flew with Child to be with RM at his home in Louisiana; and Mother continued to travel with Child to his home on a regular basis for the next two years of Child‘s life. During these visits, Mother and Child stayed with RM for weeks or months at a time; a room in RM‘s house was dedicated to Child; RM, Mother, and Child participated in numerous family events and recreational outings; and they attended church together as a family unit. Mother acknowledged that she called RM “Daddy” in Child‘s presence; she repeatedly gave RM cards and other items that referred to him as “Dad” or “Daddy“; and she identified RM as Child‘s father when she enrolled Child in a church program. RM‘s testimony that he and Mother openly referred to Child as RM‘s daughter was corroborated by RM‘s brother, pastor, and neighbor, and RM named Child as his beneficiary on an employment-related life insurance policy.
Considering all this evidence together, the record amply supports that RM received Child into his Louisiana home on a regular basis to provide her paternal love and care, and that RM, Mother, Child, and the community at large in Louisiana all perceived the relationship between RM and Child as a father-daughter relationship. Also, the fact that Mother gave birth to RM‘s biological child when Child was two years old
Mother cites numerous evidentiary items that could support a contrary conclusion, including, for example, that Mother was committed to being a single parent and underwent substantial efforts to achieve this result with Child; RM did not participate in the artificial insemination process; RM did not sign a declaration of paternity for Child at the hospital; RM was not named as Child‘s father on the birth certificate, birth announcement or baptism certificate; and RM and Mother each maintained their own homes in separate states. None of these factors required the trial court to reject RM‘s showing that he was Child‘s presumed father as supported by the evidence. The trial court could reasonably assess Mother may have initially intended to raise Child as a single parent, but 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.
For the same reasons, Mother has not shown the trial court was required to conclude that she rebutted RM‘s presumed parent status by clear and convincing evidence.
DISPOSITION
The judgment is affirmed. Appellant to pay respondent‘s costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCINTYRE, J.