Gene M. v. Annette G.
Filed 6/21/13 Gene M. v. Annette G. CA4/2
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
GENE M.,
Respondent,
v.
ANNETTE G.,
Appellant;
KEVIN G.,
Claimant.
E054720
(Super.Ct.No.
FAMRS1001434)
OPINION
APPEAL from the Superior
Court of
Bernardino County.
Michael J. Torchia, Temporary Judge.
(Pursuant to Cal. Const.,
art. VI, § 21.) Affirmed.
Stephen I. Gassner for Appellant.
Vivian T. Shallito for Respondent.
No appearance for Claimant.
Respondent Gene M. (Father)
petitioned the family court to establish the paternity of his daughter,
A.G. (Fam. Code, § 7630.)
presumed father (§ 7611), and ordered Father and appellant Annette G. (Mother),
A.G.’s mother, to participate in mediation for setting a visitation
schedule. Mother appeals the family
court’s ruling. Mother contends the
family court erred because (1) Father did not have standing to file the
petition; (2) the court should have granted Mother’s motion to dismiss Father’s
petition; (3) the court should not have considered the quality of Mother’s
marriage; and (4) there is “an irremediable matter of the human
condition.†We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Mother married Kevin G. (Husband) on September 4, 1999.
At the time Mother married Husband, she had a three-year-old son,
A.O. A.O.’s Father is James O. Mother and Husband have two children
together, S.G. and R.G. After R.G.’s
birth, in 2002, Husband had a vasectomy.
Mother and Husband separated for a three-month period.
In September 2008, Mother and Father met when Mother went
to Father’s tanning salon to tan. Mother
told Father she was “going through a divorce.â€
Mother and Father began dating and engaging in sexual intercourse. Mother and Father went to a jewelry store
together and shopped for engagement ring settings. Mother did not use birth control during the
affair. Mother took a pregnancy test
while at Father’s tanning salon—Father had purchased the test. The test was positive. Father attended Mother’s first pregnancy
appointment with her doctor. Father
believed Mother was excited about the pregnancy; however, Mother was unhappy
about it due to the problems it could create in her life.
Father told Mother he wanted them to be a family. Mother said she would file for divorce from
Husband. Husband learned about Mother’s
pregnancy during a church counseling session.
The counseling session took place in August 2009. Also at the counseling session, Mother
disclosed she had been having a nine-month affair with Father. Husband was upset and unhappy about the
pregnancy because he knew the baby was not his due to the vasectomy.
Father loved Mother.
Father was under the impression that Mother was not planning to stay
married to Husband, because Mother often texted Father, “‘I love you,’†and
Mother and Father looked at engagement rings together. Father bought Mother lunches, prenatal
massages, vitamins, and maternity clothes.
At an ultrasound appointment, Mother and Father learned the baby was a
girl. When the ultrasound technician
announced the baby was female, Mother and Father cried together. When they left the appointment, they went to
the car, hugged and continued crying.
Once inside the car, they called Father’s father in North
Carolina. Mother
told Father’s father, “‘You are going to be a grandpa. And it is a little baby girl.’†Father was looking forward to the birth of
his daughter.
Mother and Father made plans to meet so they could go to
Mother’s second ultrasound appointment together. Mother brought Husband to the meeting. Mother did not tell Father about her plans to
bring Husband to the meeting. When
Husband saw Father, Husband introduced himself to Father and told Father they
needed to talk. During the conversation
both men cried and said they did not know what to do. Husband told Father, “he didn’t know what to
think or what to do.†Father responded,
“‘I’m at the same place, you know. I got
a child coming and I can’t get the truth.
I don’t know what is going on.’â€
Father felt Mother had tried to “pit†the two men against
one another. Father had paid
approximately $250 for a 4-D ultrasound, so Father told Husband they should
attend the appointment since Father had already paid for the service. Father, Husband, and Mother went to the
ultrasound appointment; however, Husband remained outside, despite an
invitation from Father to participate in the appointment.
During Mother’s pregnancy, Father told people Mother was
pregnant with his child. Mother updated
Father on the progress of her pregnancy, such as when the fetus was moving and
kicking. Mother and Husband’s
relationship continued to be tense during the pregnancy. However, Mother did not want to file for
divorce. Mother told Father she gave
Husband divorce papers for Husband to file.
Mother discussed with Father how she would need Father to pay her
mortgage when Husband left.
Mother eventually stopped communicating with Father when
Father began telling Mother he wanted to be present during the baby’s
birth. Father went to Mother’s father’s
house to tell Mother’s father that he would provide for Mother and A.G. Mother’s father said Mother warned him Father
might stop by, and “he had nothing to say†to Father. The communication between Mother and Father
ceased.
A.G. was born on April
10, 2010. Husband was
present during A.G.’s birth, and Husband cut the umbilical cord. Husband is listed as the Father on A.G.’s
birth certificate. Father was not
present during the birth. Father is
A.G.’s biological father. Mother did not
notify Father of A.G.’s birth. On April
17, 2010, Father called Mother. Mother
told Father A.G. had not yet been born and said, “‘Don’t call me.’†On April 20, Father learned from another
person that A.G. was born on April 10.
Father called Mother again.
Mother told Father that A.G. was “beautiful†and “healthyâ€; however,
Mother would not allow Father to see A.G.
On April 29, 2010, Father filed his petition to establish A.G.’s
paternity and obtain visitation.
Mother and Father continued communicating via telephone
calls, e-mails, and text messages.
Father continued to ask to see A.G.
Mother told Father, “‘Give me time†or . . . ‘When the time is right.’†At the end of June 2010, Mother relented and
brought A.G. to a department store to meet Father. Father spent approximately one hour with the
child and purchased bows for her hair.
During the first week of July, Mother, Father, and A.G. went to lunch
together, and spent approximately three hours together. Father attended two of A.G.’s doctor
appointments. Father was present when
A.G. received vaccine shots. Father was
introduced at the appointments as A.G.’s father.
Father and Mother spent a Friday together. Father took care of A.G. while Mother went to
a massage appointment. Father gave A.G.
her bottle and changed her diaper.
Father told people A.G. was his daughter. On another occasion, Father cared for A.G.
from 6:00 a.m. to 5:00 p.m., while Mother went to Orange County. Father took A.G. to his salon, to his house,
and out for a walk. During that time,
Father fed A.G., changed her diapers, and changed her clothes. Father has bottles, diapers, baby lotion, and
baby clothes at his house.
During July and August 2010, Mother and Father resumed
their romantic relationship. Mother
again told Father that she loved him and they would build a life together. Mother continued bringing A.G. to Father’s
house. Mother instructed Father not to
tell people he was visiting A.G. Mother
was often tired, so Father would take care of A.G. while Mother slept. Father told a neighbor, who sold life
insurance, that he needed to obtain an insurance policy from the neighbor for
A.G.’s sake. Father told the neighbor
A.G. was his daughter.
Father gave Mother money to purchase a stroller and $100
per week for babysitters. On August 25,
2010, Father took care of A.G. while Mother was at work. Father took A.G. to his salon. Father played with A.G., fed her, and changed
her diapers. When people came into the
salon, Father introduced A.G. as his daughter.
At the end of August 2010, Mother discovered Father was telling people
he was visiting with his daughter; Mother “cut [Father] off all together†by
not allowing Father to contact A.G.
In January or February 2011, Mother contacted Father and
requested money. Father argued with
Mother because Mother was not allowing Father to see A.G. Nevertheless, Father sent Mother a
check. Mother did not cash the
check. A.G. stayed with a babysitter
from 7:00 a.m. to 3:00 p.m. At 3:00,
Husband would begin caring for A.G.
Mother would arrive home from work around 6:30 p.m. So from 3:00 to approximately 6:30, Husband
took care of A.G.
The family court found Father “exerted meaningful and
appropriate efforts to establish a parental relationship with A.G. both before
and after her birth.†The court found
Father missed important moments in A.G.’s life due to Mother’s “unilateral
action[s].†Further, the court found
Husband acted as A.G.’s father “exclusively because the child’s biological
father was precluded from doing so.†The
family court ruled Father is A.G.’s presumed father and ordered the parties
attend mediation to create a visitation schedule.
On October 17, 2011, Mother filed a petition for writ of
supersedeas with this court. Mother sought
to stay the family court’s order requiring the parties to participate in
mediation regarding vistation. Mother
asserted that if Father were permitted to visit with A.G. in his home, then
Father would be able to show he “receive[d] the child into his home and openly
holds out the child as his natural child†(§ 7611, subd. (d)), which Mother
argued would “moot the appeal.†On
December 16, 2011, this court granted Mother’s petition for a supersedeas writ,
which stayed the trial court’s orders pending the outcome on appeal.
A. FILING THE PETITION
Mother asserts Father did not have standing to file the
petition because Father filed the petition and then “subsequently develop[ed]
the facts that would give him the status of a presumed father.†We disagree.
Standing is an issue of law which we review de novo. (Scott
v. Thompson (2010) 184 Cal.App.4th 1506, 1510.) Section 7630, subdivision (b) provides the
following law regarding filing a paternity action: “Any interested party may bring an action at
any time for the purpose of determining the existence or nonexistence of the
father and child relationship presumed under subdivision (d) or (f) of Section
7611.â€)
fathers [citation] . . . .†(
1375, 1382; see also Miller v Miller (1998)
64 Cal.App.4th 111, 117.) “California
law distinguishes ‘alleged,’ ‘biological,’ and ‘presumed’ fathers. [Citation.]â€
(Gabriel P. v. Suedi D. (2006)
141 Cal.App.4th 850, 857.) “[A]
‘biological’ or ‘natural’ father is one whose biological paternity has been
established, but who has not achieved presumed father status as defined in . .
. section 7611.†(Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586,
596.) “An ‘alleged’ father refers to a
man who may be the father of a child, but whose biological paternity has not
been established, or, in the alternative, has not achieved presumed father
status. [Citation.]†(Ibid.)
There is no dispute that Father is A.G.’s natural/biological
father. As A.G.’s natural father, Father
is at the very least an alleged father, if not more than that. Thus, Father qualifies as an “interested
party†in this case because an alleged father is an interested party in a
paternity action. (Said v. Jegan, supra, 146
Cal.App.4th at p. 1382; see also Miller v
Miller, supra, 64 Cal.App.4th at
p. 117.)
Mother contends Father had to qualify as a presumed
father in order to properly bring his paternity petition, which means father
would have needed proof, or at least allegations, that he received the child into his
home and openly held out the child as his natural child. (§ 7611, subd. (d).) In In
re Dawn D. (1998) 17 Cal.4th 932, 937-938, our Supreme Court noted that
section 7630, subdivision (a) limits “standing to challenge the presumption of
a husband’s paternity to the child, the child’s natural mother, or a presumed
father.†The Supreme Court went on to
note that under section 7630, subdivision (b), any person who is an
paternity action, and therefore a person who does not qualify under section
7630, subdivision (a), could possibly bring an action under subdivision
(b). (Dawn D., at p. 938, fn. 5.)
Given that Father could properly bring his petition under section 7630,
subdivision (b) as a natural father, we conclude Mother’s argument is
unpersuasive—Father did not need to be a presumed father in order to file the
paternity action.
B. MOTION TO DISMISS
1. PROCEDURAL
HISTORY
On
the day Father filed his petition, he also filed a declaration asserting he
paid for Mother’s ultrasound and attended the ultrasound appointment. Father also asserted Husband had a vasectomy
six years prior to Mother becoming pregnant with A.G. Father complained Mother had not permitted
him to see A.G. since A.G. was born earlier that month. On June 7, 2010, Mother filed a “motion to
dismiss and quash the paternity action,†which appears to be in the nature of a
demurrer. (Code Civ. Proc., § 430.10,
subd. (b).) Mother argued Father did not
have evidence he was a presumed father, and therefore lacked standing to bring
the petition.
The
family court found there was no dispute Father is A.G.’s biological
father. The family court concluded the
presumption of paternity in favor of Husband was not conclusive due to Husband
being sterile. (§ 7540.) The family court concluded Father “submitted
sufficient information in his pleadings to raise salient questions of fact as
to central issues in this case. The
court does not believe it would be proper or appropriate to deny him the
opportunity to present evidence at trial regarding his claims of paternity of
[A.G.]†Thus, the family court denied
Mother’s motion to dismiss.
2. ANALYSIS
Mother
contends the family court erred by denying her motion to dismiss because Father
could only bring the petition if he were “classified as a presumed father
. . . under [section] 7611[, subdivision] (d).†We disagree.
We
review demurrers de novo, so we apply the de novo standard to the family
court’s ruling on Mother’s motion to dismiss.
(McCutchen v. City of Montclair
(1999) 73 Cal.App.4th 1138, 1144.) As
explained ante, an alleged father has
standing to file a paternity action. (
64 Cal.App.4th at p. 117.) Therefore,
the family court did not err by denying Mother’s motion because Father
qualified as an alleged father and did not need to prove he was a presumed
father in order to obtain standing.
Nevertheless, for the sake of addressing Mother’s
concerns, we will analyze whether Father would have standing to bring the
petition if he needed to qualify as a presumed Father to do so. A man can qualify as a presumed father if “[h]e
receives the child into his home and openly holds out the child as his natural
child.†(§ 7611, subd. (d).) If a father is thwarted from seeing his child
after the child is born, then we can consider the father’s conduct before the
child’s birth, “including whether he publicly acknowledged paternity, paid
pregnancy and birth expenses commensurate with his ability to do so, and
promptly took legal action to obtain custody of the child. [Citation.]
He must demonstrate a full commitment to his parental responsibilities
within a short time after he learned that the biological mother was pregnant
with his child. [Citation.] He must also demonstrate a willingness to
assume full custody. [Citation.]†(In re
Elijah V. (2005) 127 Cal.App.4th 576, 583; see also In re Julia U. (1998) 64 Cal.App.4th 532, 540-541.)
“‘A demurrer tests the legal sufficiency of the
complaint.’†(Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166,
173.) It would be error for a trial
court to sustain a demurrer if a petitioner stated a claim under any possible
legal theory. (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242,
247.)
In Father’s declaration he wrote, “[Mother] did not allow
me to be present at our child’s birth and has not permitted me to have any
contact with our child.†Thus, Father
asserted he was thwarted from seeing A.G. after her birth. As a result, the court would look to Father’s
prebirth behavior to determine if he qualified as a presumed father.
In regard to publicly acknowledging paternity, Father
alleged he took Mother to her ultrasound appointment and spoke with Husband
about being the Father of the child. A
finder of fact could conclude that Father publicly acknowledged paternity by
confronting Husband and attending the ultrasound appointment. In regard to expenses, Father declared he
paid for Mother’s ultrasound appointment.
Father declared he was not informed when Mother gave birth to A.G. Thus, a trier of fact could conclude Father
paid for Mother’s pregnancy related expenses when given the opportunity to do
so.
Father further declared that A.G. was born in April
2010. Father did not allege an exact
date, because Father was not given information about A.G.’s birth. Father’s paternity petition was filed on
April 29, 2010. In Father’s petition he
sought joint legal and physical custody of A.G.
Given that Father filed his petition for joint custody within the same
month of A.G.’s birth, a trier of fact could reasonably conclude Father
promptly took legal action to obtain custody of the child.
Father asserted he demonstrated a full commitment to his
parental responsibilities within a short time after learning Mother was
pregnant with A.G. by declaring (1) he was “thrilled†by the pregnancy; (2) he
paid for the ultrasound; (3) he discussed the pregnancy with Husband; and (4)
he attended the ultrasound appointment with Mother. A trier of fact could reasonably conclude
from these allegations that Father demonstrated a full commitment to his
parental responsibilities, because the allegations reflect the behavior of a
father who wants to be involved in the child’s life. If Father were not fully committed to the
child, he likely would not have confronted Husband about the pregnancy.
In Father’s petition, he requests joint
visitation†with the child, and that the child’s surname be changed to Father’s
surname. A reasonable person could infer
from these requests that Father would be willing to assume full custody. It appears Father was being reasonable by
requesting joint custody, but there is nothing indicating Father would not
accept full custody of A.G. if given the opportunity. Given the foregoing analysis, the family
court did not err by denying Mother’s motion to dismiss, even assuming Father
had to be a presumed father to obtain standing.
Mother asserts Father could only have standing to bring
the paternity action if he received the child into his home and openly held the
child out as his natural child.
(§ 7611, subd. (d).)
Mother’s argument is not persuasive because Father declared he was
thwarted from receiving the child into his home, which triggers an alternate
legal path to being accorded parental rights, which is detailed
father’s actions during the pregnancy. (
Mother asserts the law concerning “thwarting a father
from receiving his child into his home†only applies in adoption and dependency
cases. Mother contends that this case
does not involve an adoption or a dependency, and therefore it is improper to
look at Father’s conduct during the pregnancy to determine if he had standing
to file the paternity petition. Mother
is incorrect. The “thwarted father†law,
which is derived from the case of Adoption
of Kelsey S. (1992) 1 Cal.4th 816, has been applied in paternity
actions. (J.R. v. D.P. (2012) 212 Cal.App.4th 374, 888; In re J.L. (2008) 159 Cal.App.4th 1010, 1018, 1022-1023.)
Mother further asserts that the family court erred
because “in its statement of decision and order thereon†it made an incorrect
legal conclusion regarding Father’s constitutional rights superseding Husband’s
constitutional rights. Mother does not
provide a citation to the record to support this argument. (Cal. Rules of Court, rule
8.204(a)(1)(C).) We have reviewed the
family court’s written ruling on the motion to dismiss. We have found nothing concerning
constitutional law. The only laws cited
in the ruling are Family Code sections.
court applied the Kelsey S. law,
which has constitutional underpinnings, to determine that Father had
standing. (See In re J.L., supra, 159 Cal.App.4th
at p. 1023 [discussing the constitutional basis for Kelsey S. father status].)
We do not find this argument to be persuasive, because
the family court did not need to go through a Kelsey S. analysis to determine whether Father had standing to file
his petition. As set forth
petition because he is an “interested party,†due to his status as the
natural/biological father. This court
conducted the Kelsey
concerns that the family court erred if her version of the law was
correct. But, as explained
correct. We performed the
and address the claims Mother raised, despite Mother’s version of the law being
incorrect. The law provides: “[t]he term ‘interested party’ includes
alleged fathers [citation] . . . .†(
64 Cal.App.4th at p. 117.) Accordingly,
there is no need to analyze whether the juvenile court somehow incorrectly
weighed Father’s and Husband’s constitutional rights pursuant to the
constitutional underpinnings of Kelsey S.,
because it is unlikely the family court engaged in such an analysis, especially
since Kelsey S. is not cited in the
family court’s ruling and no constitutional law is cited in the family court’s
ruling on the motion to dismiss.
C. MARRIAGE
QUALITY
Mother contends the family court erred by finding Husband
took responsibility for A.G. “in an ‘attempt to save his marriage.’†Mother provides no record citations to
support this contention. (Cal. Rules of
Court, rule 8.204(a)(1)(C).) It is
unclear if Mother’s contention concerns the ruling on the motion to dismiss or
the ruling on the substantive paternity issue.
We have reviewed both rulings and cannot find any mention of the quality
of Mother’s and Husband’s marriage. In
the ruling on the substantive paternity issue, the family court noted Mother
and Husband have “marital concerns,†but concluded Mother and Husband’s efforts
to include A.G. as part of their family unit were “admirable.†The court did not pass judgment on the
“marital concerns†or offer an opinion on the quality of the marriage. Since we cannot determine the basis of
Mother’s contention, due to Mother not describing the ruling or providing
record citations, we conclude Mother has forfeited the issue for appeal. (In re
Estates of Collins (2012) 205 Cal.App.4th 1238, 1251, fn. 11 [failure to
provide record citations forfeits the issue].)
D. POLICY
Mother contends the Legislature and the courts have
“routinely found there cannot be two presumed fathers,†and it is not “possible
for [A.G.] to have two fathers on these facts.â€
Mother’s argument is unclear, but since Mother does not discuss the
evidence or substantial evidence standard, we infer Mother is asserting the
family court erred by creating a second presumed father for A.G. and improperly
balancing the policies in selecting Father as the sole presumed father.
“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.’
[Citations.] How those competing
presumptions are to be reconciled is set forth in section 7612 . . . (b) If 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.†(
603.) Biological paternity does not
always trump father status achieved by virtue of being married to the child’s
natural mother. (Id. at pp. 604-605.) We
review the family court’s weighing of the policies and exercise of logic under
the abuse of discretion standard of review.
(Id. at p. 606.)
In Husband’s favor is the policy of “protect[ing] the
integrity of the family unit.†(
1109, 1114.) In Father’s favor is the
policy of supporting biological parents’ relationships with their
children. (See In re Jesusa V., supra,
32 Cal.4th at p. 606-609 [weighing the relationship policy against the biology
policy].) When the child at issue is
over two years old, then the court will consider the quality of the
relationships the child has with each man.
(In re Kiana A., supra, 93
Cal.App.4th at p. 1119.) A.G. was 17
months old at the time of the hearing.
In this case, the family court concluded it was
“admirable†of Mother and Husband to want to raise A.G. in their home with
their other children. The court
concluded Husband would be “a loving and caring step[father]†to A.G. In regard to Father, the court found “the
developments in this case [were] grossly unfair†to Father, because Father was
excluded from taking part in A.G.’s birth and the first 17 months of her
life. The court also found Father took
every opportunity to act as a father to the child. Thus, the juvenile court concluded the weight
of policy and logic “clearly favor a finding that the biological
father—[Father]—is the father of [A.G.]â€
The family court weighed the evidence and considered the
law. The family court’s decision is
supported by the record, in that the evidence does reflect Father took
advantage of every opportunity to act as a father to A.G. For example, Father fed A.G., changed her
diapers, and changed her clothes. Given
that the family court’s decision is within the bounds of reason, we conclude
the court did not err. (See
635, 642 [“An abuse of discretion occurs when the juvenile court has exceeded
the bounds of reason by making an arbitrary, capricious or patently absurd
determinationâ€].)
DISPOSITION
The judgment is affirmed.
Respondent, Gene M., is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting
P. J.
RICHLI
J.
further statutory references will be to the Family Code, unless otherwise
indicated.
December 21, 2011, this court temporarily lifted the stay of the family court’s
proceedings, but only for the limited purpose of permitting the family court to
enter a formal order, so the parties would have the correct order from which to
appeal. We lift the stay in its
entirety by separate order.
