face="Times New Roman">Beth C. v.
Marcia B.
face="Times New Roman">Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">IN THE COURT OF APPEAL OF THE STATE OF
face="Times New Roman">
face="Times New Roman">SECOND APPELLATE DISTRICT
face="Times New Roman">
face="Times New Roman">DIVISION SEVEN
face="Times New Roman">
face="Times New Roman">
BETH
C.,
Plaintiff and Respondent,
v.
MARCIA
B.,
Defendant and Appellant.
B233825
(
Super.
APPEAL from a judgment of the
County, Kenneth Black, Judge.
Affirmed.
Keith E. Dolnick and David B. Ezra for
Defendant and Appellant.
Manatt, Phelps & Phillips, Brad W. Seiling,
Benjamin G. Shatz and Diana M. Kwok for Plaintiff and Respondent.
face="Times New Roman">_____________________________
Marcia B., appeals from an order granting respondent, Beth C., presumptive
parentage status under Family Code section
7611, subdivision (d). The court found
that Beth C. was Ian B.’s legal parent pursuant to section 7611, subdivision
(d) because Beth C. received Ian B. into her home and held him out as her
son. Before this court, Marcia B.
argues that the lower court’s finding should be reversed because the court’s
interpretation of section 7611 was erroneous and the judgment is counter to
public policy. As we shall explain, the
evidence presented supported the court’s conclusion and appellant’s “policyâ€
arguments are unpersuasive. Accordingly,
we affirm.
In 2002,
Beth C. and appellant entered into a committed same-sex relationship. In 2003, Beth C. moved from
live with appellant. The couple never
registered as domestic partners in any state.
After some time, the couple became interested in having children and
tried multiple times to have a child through donor insemination of Beth C. However, none of these attempts was
successful.
Sometime
before 2007, the couple began looking into the possibility of adopting a child
from face="Times New Roman">Russia
specifically four-year-old boy, Egor.
Once the adoption process began, appellant was formally listed as the
adoptive parent because Beth C. was worried about a DUI arrest on her records;
and face="Times New Roman">Russia
not permit adoption by same sex couples.
In January 2007, the adoption was completed and Egor’s name was changed
to Ian B.
name="_ftnref2" title="">face="Times New Roman">[2]
but this process was delayed when the couple moved to
York. Beth
C.’s adoption process was never completed.
While Beth
C. and appellant were in a relationship, Beth C. cared for Ian B. at home while
appellant worked full time. Beth C.
introduced Ian B. as her son. Ian B.
refers to Beth C. as “mommy.†Beth C.
took him to his various doctor and physical therapy appointments. Beth C. remained a “stay at home mom.â€
In August
2008, the couple ended their relationship.
At the time they were living in
Beth C. continued living with appellant for the remainder of the school year,
which allowed for Ian B. to finish Kindergarten. Once the school year ended, Beth C. decided
to move to face="Times New Roman">California
live with her parents. Appellant agreed
that Ian B. should live with Beth C. in
C. in California
several weeks of the year. Beth C.
enrolled Ian B. in school in face="Times New Roman">California
was listed as his mother in Ian’s medical and school records. She also attended Ian’s school functions and
introduced Ian B. as her son.
In February
of 2011, appellant picked up Ian B. from Beth C.’s residence and did not return
Ian B. to the residence. Following this
incident, appellant obtained a custody order limiting Beth C.’s visitation
rights with Ian B.
Thereafter
Beth C. filed a petition to establish her legal parentage. Appellant attempted to obtain legal custody
of Ian B. in separate filings in both
trial to resolve the question of whether Beth C. was Ian B.’s legal parent
under section 7611, subdivision (d). The
trial court found that Beth C. is a presumed parent and that the presumption
had not been rebutted. The court,
therefore, entered an order and judgment in favor of Beth C. Appellant filed a timely appeal.
Before
this court, appellant contends that the lower court improperly held that Beth
C. was a presumptive parent of Ian B. We
disagree.
face="Times New Roman">Presumed
Parentage Status under Family Code Section 7611
face="Times New Roman">The Uniform Parentage
Act (UPA) defines the “[p]arent and child relationship†as “the legal
relationship existing between a child and the child’s natural or adoptive
parents. . . . The term includes the
mother and child relationship and the father and child relationship.†(Fam. Code, § 7601.)
face="Times New Roman">Section 7611 provides
several circumstances in which “[a] man is presumed to be the natural father of
a child,†including: if “[h]e receives the child into his home and openly holds
out the child as his natural child†(Fam. Code, § 7611, subd. (d)). The proponent has the burden of proving the
foundational facts by a preponderance of the evidence, i.e., that he received
the child into his home and openly and publicly acknowledged paternity. (In re Spencer W.
(1996) 48 Cal.App.4th 1647, 1653; In re Salvador M.
(2003) 111 Cal.App.4th 1353, 1357.)
face="Times New Roman">While section 7611
speaks in terms of fathers, the UPA expressly provides that in determining the
existence of a mother and child relationship, “[i]nsofar as practicable, the
provisions of this part applicable to the father and child relationship
apply.†(§ 7650.) Thus, section 7611 can be applied in a
gender-neutral manner, and a woman is presumed to be the natural mother of a
child if she “receives the child into h[er] home and openly holds out the child
as h[er] natural child.†(§ 7611, subd.
(d); see also, S.Y. v. S.B. (2011)
Cal.App.4th 1023, 1030; Elisa B. v. Superior Court
(2005) 37 Cal.4th 108, 116.)
face="Times New Roman">The presumption of
parenthood is a presumption, which can rebutted only by clear and convincing
evidence. (§ 7612.) A person seeking the benefit of the
presumption does not have to show that he or she is in a registered domestic
partnership with the legal parent. (
of the other parent, or even a long-term boyfriend or girlfriend, but someone
who has entered into a familial relationship with the child: someone who has
demonstrated an abiding commitment to the child and the child’s well-being,
regardless of his or her relationship with the child’s other parent.†(E.C.,
face="Times New Roman">The paternity
presumptions are driven by the state’s interest in the welfare of the child and
the integrity of the family. (
years of living together in a purported parent/child relationship “should not
be lightly dissolved.†(Ibid.) These presumptions are in line with the
well-established policy in California that “whenever possible, a child should
have the benefit of two parents
to support and nurture him or her.†(Librers
v. Black (2005) 129 Cal.App.4th 114, 123; emphasis in
original.)
face="Times New Roman">Standard
of Review
face="Times New Roman">“We review a lower
court’s determination of presumed parentage status for substantial
evidence.†(In re
Salvador M. (2003) 111 Cal.App.4th 1353, 1358.) In determining whether substantial evidence
supports a finding or order, “‘we must consider all of the evidence in the
light most favorable to the prevailing party, giving it the benefit of every
reasonable inference, and resolving conflicts in support of the judgment.
[Citations.] [¶] It is not our task to weigh conflicts and disputes in the
evidence; that is the province of the trier of fact. Our authority begins and ends with a
determination as to whether, on the entire record, there is any substantial
evidence, contradicted or uncontradicted, in support of the judgment. Even in cases where the evidence is
undisputed or uncontradicted, if two or more different inferences can
reasonably be drawn from the evidence this court is without power to substitute
its own inferences or deductions for those of the trier of fact, which must
resolve such conflicting inferences in the absence of a rule of law specifying
the inference to be drawn. We must
accept as true all evidence and all reasonable inferences from the evidence
tending to establish the correctness of the trial court's findings and
decision, resolving every conflict in favor of the judgment. [Citations.]’
[Citation.]†(
quoting Howard v. Owens Corning (1999) 72
Cal.App.4th 621, 630-631.)
face="Times New Roman">To the extent we are
called upon to review the trial court’s legal interpretation of the “receivingâ€
and “holding out†requirements in section 7611, subdivision (d), we shall
exercise our independent legal judgment.
(See Ghirardo v. Antonioli
(1994) 8 Cal.4th 791, 796; accord S.Y. v. S.B., supra,
201 Cal.App.4th at p. 1031.) We review
the trial court’s determination that there is no basis to rebut the parentage
presumption for abuse of discretion. (Charisma R. v. Kristina
S, supra, 175
Cal.App.4th at p. 378.)
face="Times New Roman">
face="Times New Roman">Substantial
Evidence Supports the Trial Court’s Finding.
face="Times New Roman">In reviewing whether
there is sufficient evidence to support the lower court’s finding that Beth C.
was a presumptive parent of Ian B., we do not reweigh the evidence or exercise
independent judgment, but merely determine if there are sufficient facts to
support the findings of the trial court.
(Charisma R.
175 Cal.App.4th at p. 368.) Here, the
record contains ample support for the lower court’s determination that Beth C.
received Ian B. in her home and held him out as her son.
face="Times New Roman">Beth C. and appellant
were in a committed relationship, decided to adopt a child, and both women were
to be this child’s parents. From the
time Ian B. was adopted until mid-2009, the child lived with both women as his
mothers. Appellant concedes the women
were “co-parents†while they were together and that appellant recognized that
Beth C. treated and introduced Ian B. as her son.
face="Times New Roman">In June of 2009, after the
couple ended their relationship, Beth C. and Ian B. moved to California with
appellant’s knowledge and consent.
Thereafter, until February 2011, Ian B. lived with Beth C. in her
parents’ home and Ian B. visited appellant during school breaks. In California, Beth C. enrolled Ian B. in
school as her son and was listed in the school’s records as his mother. She introduced Ian B. as her son and the
child called her “mommy†or “mom.â€
Appellant
does not contest the fact that Beth C. held Ian B. out to the world as her son
and, as we shall explain, none of her arguments assailing the court’s order is
persuasive. However, appellant contends
that the court incorrectly held that Ian B. was received into Beth C.’s home because
Beth C. lived in her mother’s home and did not personally own this home. Appellant cited no legal authority in support
of this argument and our research has not revealed any basis for it.
face="Times New Roman">On the contrary, courts
have adopted an expansive view of the “received child into her home†requirement
of 7611, subdivision (d) and have never applied it to require that a presumed
parent own the home in which they dwell.
(See Charisma R. v. Kristina S, supra, 175
Cal.App.4th at p. 374 [holding that presumptive parent still received child
into her home even though her name was not on the lease of the apartment];
that presumptive parent who lived in a separate residence as child did not
undermine the court’s finding that the parent received the child into a family
home].) Thus, we conclude that the
evidence is sufficient to support the trial court’s finding that the child was
received into Beth C.’s home.
face="Times New Roman">The majority of
appellant’s other arguments on appeal are that the trial court’s holding should
be overturned on policy grounds. We find that these policy arguments do not
affect the court’s determination that Beth C. is a presumed parent under 7611,
subdivision (d).
face="Times New Roman">Appellant first argues
that the trial court’s determination is counter to public policy because it
excuses Beth C.’s decision to not form a legal relationship with Ian B. and
encourages individuals to avoid taking responsibility for children. Appellant presumes that Beth C. did not want
the legal and financial responsibility and was free to walk away from Ian B.
before this proceeding. This argument
fails to take into account that section 7611, subdivision (d) could have been
used by Marcia B. had she sought financial or legal accountability from Beth
C. (See Elisa B, supra, 37
Cal.4th at p. 126 [holding that former lesbian partner was obliged to pay child
support to mother because she was the presumed parent].) Since any interested party can bring a
presumed parenthood claim we fail to see how section 7611 relieves a presumed
parent of the financial and legal responsibility of a child. (§ 7650.)
meritless.
face="Times New Roman"> Appellant next contends that the trial court’s
application of 7611, subdivision (d) is so expansive that “any person who
spends considerable time with a child (and refers to the child by the right
terms) could claim parentage when it becomes in their interest to do so.†Appellant recognizes that recent case law
does not support this argument, but seeks to distinguish the instant case from
precedent. In S.Y. v. S.B.,
supra, 201 Cal.App.4th at page 1036, and
E.C. v. J.V., supra,
202 Cal.App.4th at page 1091, the Third Appellate District held that section
7011, subdivision (d) should be applied to same-sex couples who do not enter
into a domestic partnership in a manner consistent with the trial court in the
instant case. However, appellant argues
that these cases are not dispositive because each case involved a same-sex
couple with one partner in the military and therefore precluded from entering
into a domestic partnership because of “Don’t Ask, Don’t Tell.â€
face="Times New Roman">We fail to see how this
fact is material to a section 7011, subdivision (d) determination. Section 7611, subdivision (d) does not
consider the relationship between the parents of a child and courts have been
explicit in holding that the relationship between the parents of a child is
immaterial to a presumptive parentage determination. In E.C. v. J.V.
the Third Appellate District has succinctly summarized the law on this issue:
face="Times New Roman">
To
be a presumed parent, a person does not have to be married to the other parent
(Johnson v. Calvert (1993) 5
Cal.4th 84, 88–89, [ ]) or registered as his or her domestic partner (Elisa B., supra, 37 Cal.4th at pp. 114,
125, [ ]). A presumed parent need not have
ever lived with the child’s other parent (In
re A.A. (2003) 114 Cal.App.4th 771, 784, [ ]) and may not have even
known the other parent (In re Salvador M.
(2003) 111 Cal.App.4th 1353, 1355–1356, 1358, [ ]).†(E.C. v. J.V.,
face="Times New Roman">
A section
7611, subdivision (d) parentage determination is an evaluation of an
individual’s relationship with a child and not an evaluation of that
individual’s relationship with the child’s parent. (E.C. v. J.V.,
a child’s alleged parent and biological [or legal] parent is legally irrelevant
in determining whether the alleged parent held out that child as his or her
natural child. The relevant relationship is that between the child and the
alleged parent.â€].) Accordingly, Beth
C.’s failure to enter into a domestic partnership does not, in our view,
preclude her from showing her presumed parenthood under section 7611,
subdivision (d).
face="Times New Roman">Appellant’s final policy
argument is that the court’s application of section 7611, subdivision (d)
allows for a person to circumvent formal adoption
proceedings by showing that he or she is the presumed parent instead of
formally adopting the child. Appellant presumes that Beth C.’s “likelihood of a
successful adoption appears to be minimal†and she is using section 7611 as a
way of avoiding adoption proceedings. As
the Fourth Appellate District has recently recognized in L.M. v. M.G.
(2012) 208 Cal.App.4th 133, 147, “Adoption and an order determining
parentage under the UPA are alternative
methods for someone to establish parental status.†(Ibid., emphasis
in original.) Case law recognizes
parental statuses under the UPA even when a stepparent did not elect to adopt a
child in the past. (See ibid. [holding
that failure to seek an adoption does not prevent an individual from seeking
parentage under the UPA]; e.g. Charisma R.
Cal.App.4th 361; S.Y. v. S.B.,
argument is without merit.
face="Times New Roman">In view of all the
foregoing, we conclude that the court did not err in granting Beth C.
presumptive parent status.
face="Times New Roman"> The order is affirmed.
Respondent is entitled to costs on appeal.
WOODS,
Acting P. J.
We concur:
face="Times New Roman">
JACKSON, J.
SEGAL,
J.*
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
face="Times New Roman">
*Judge of the Los Angeles County
Superior Court assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
name="_ftn1" title="">
face="Times New Roman">[1] All statutory
references are to the Family Code unless otherwise indicated.
surname with Marcia B. and his middle name is Beth C.’s surname.
