R.M. v. T.A.

Filed 1/27/15

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

R.M., D064922

Respondent,

v. (Super. Ct. No. D528261)

T.A.,

Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joel R.

Wohlfeil, Judge. Affirmed.

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
parentage presumption set forth in Family Code section 7611, subdivision (d) (hereafter,

section 7611(d)).1 This statutory provision creates a presumption that a person is the

natural parent of a child if the person shows by a preponderance of the evidence that he

or she received the child into his or her home and openly held the child out as his or her

own child. Also, the statutory scheme allows an opposing party to rebut the presumption

by clear and convincing evidence. (§ 7612, subd. (a).)

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 section 7611(d) parentage presumption serves the

legitimate state interest in providing stability for children who have a parental

relationship with the person afforded presumed parent status; (2) because the statutorily-

prescribed requirements for the presumption necessitate a fully-developed parental

1 Subsequent unspecified statutory references are to the Family Code.
2
relationship between the person and the child, the statute ensures that application of the

presumption will not deprive a parent of his or her right to raise a child without

interference by a nonparental figure; and (3) there is no basis for us to alter the long-

established standards that govern the presumed parent statutory scheme.

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.

2 In her appellate briefing, Mother does not expressly identify her arguments as
including a challenge to the sufficiency of the evidence, but rather for the most part
frames her challenges as derived from claims of constitutional and other legal error.
3
 FACTUAL AND PROCEDURAL BACKGROUND3

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. (§ 7650, subd. (a).)4

3 Under well-settled appellate standards, we summarize the evidence in the manner
most favorable to the judgment. (Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 362,
369 (Charisma R.); Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1405.) In her reply
brief, Mother properly states we should not consider any claims raised by RM in his pro.
per. respondent's brief that are unsupported by record citations or incorrectly refer to
matters in the record. Our summation is based on the record and we do not rely on any
statements by either party that are not reflected in the record.

4 Section 7650, subdivision (a) provides that "[a]ny interested person" may bring an
action to determine the existence or nonexistence of a parental relationship.

4
 Mother and RM testified at trial, along with several other witnesses called to

support their respective positions. Mother testified that when she and RM were first

dating, she told him that her plan was to become a single mother. She started preparing

for artificial insemination while in Louisiana, and she turned down a promotion and

decided to give up her career in the Navy so she could become a "single mother and do

this on [her] own." She requested and obtained a transfer to San Diego where she

received fertility and insemination treatments for about 17 months, using donated sperm

from a sperm bank. After undergoing an in vitro insemination procedure, she discovered

she was pregnant in July 2007.

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

5 Mother acknowledged that RM deposited a sample at a sperm bank, but claimed
he did this not for donation purposes but to get his sperm tested for diseases or other
conditions. Mother's mother (Grandmother) acknowledged that RM donated sperm, and
testified that RM wanted to be the father of Mother's child, but Mother denied his request
and did not use his sperm because she had been "working on this for years to get
pregnant, and she didn't know him that well and decided that she did not want him to be
the father."
5
 According to RM, even though he was not the biological father, in the summer of

2007 after Mother was pregnant she asked him to be Child's father, and he agreed. RM

testified that Mother asked him to help her raise Child and told him she wanted Child to

have a father because she did not have one. Mother testified she never said this to RM,

and it was "inconceivable" to her that after undergoing artificial insemination treatment

for years she would make a decision to allow him to be the father a few weeks after she

became pregnant.

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.

6
 RM returned to Louisiana about one week after Child's birth. Mother did not

identify RM as Child's father on Child's birth announcement. RM returned to San Diego

to attend Child's baptism, but he was not identified on Child's baptism certificate as the

father.

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

7
Mother and Child in San Diego during the holidays if they were not in Louisiana or on

trips elsewhere.

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

8
and RM at Mother's home during the first few weeks after Child's birth; of RM holding

Child for her first plane trip; of RM holding Child at her baptism in San Diego; and of

Child lying with RM in his bed at his home. There were pictures showing Child with RM

and/or RM's relatives (including his mother, siblings, nieces, and nephews) on such

occasions as Child's baby shower, Halloween, Christmas, Thanksgiving, Child's birthday,

and vacations and recreational outings. Other photos showed RM holding Child in

Washington, D.C. during a trip for Mother's Naval Academy reunion; RM with Child in

Louisiana while Child was doing such things as sitting in a laundry basket, trying to help

him cook, accompanying him inside an election booth, and sitting with him in a chair;

and of RM with Child and Second Child at Mother's home two days after Second Child's

birth. In one photograph, taken when RM took Child on an outing in Louisiana, Child

was wearing a t-shirt stating "Daddy's Little Sweetheart."

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]."

9
 RM testified that Child called him "Daddy"; he and Mother referred to him by this

name; and when he gave presents to Child he would write that the gift was from "Daddy"

or from "Mommy and Daddy." Mother acknowledged she sent cards and other items

referring to RM as dad, and also acknowledged she had addressed RM as "Daddy" in

Child's presence. However, she claimed this was merely a "pet name" she used as a term

of endearment and to cheer up RM when he underwent some legal difficulties.

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

6 Mother testified she did not initially identify RM as the father on the form but he
became angry because he did not want to look like a "fool" at his church; at that point the
relationship "was over" and she was leaving in a few days; and she agreed to put him
down " 'like an emergency contact.' " She stated she registered Child in the program even
though she had broken up with RM and was moving back to San Diego because she was
pregnant with Second Child; she still had hope RM "might change"; and she registered
Child to hold a spot in the program and leave her "doors open."

10
"Happy Father's Day from Your Little Girl" which was signed "Love, [Child]" in Child's

handwriting.7

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

7 Mother testified that she sent the art project to RM even though they had broken
up and she had left Louisiana "for good" because she was about to deliver RM's child
(Second Child) and regardless of her feelings for RM she had a duty to try to maintain a
cordial relationship with him so he could have a relationship with Second Child.

8 Mother testified that although she was trying to be cordial and she wanted RM to
have a picture taken with his biological daughter, she did not want him in a photograph
with Child but she complied because he insisted and she did not want to make a scene.
To contradict Mother's claim, RM submitted into evidence an e-mail sent by Mother to
RM in which Mother gave her view as to which picture was the best of RM and Child for
purposes of selecting which ones to print.
11
never sent her any child support for Child, whereas RM testified he tried to send money

and gifts for Child but Mother would not accept them.

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.

12
 After hearing the evidentiary presentation and counsel's closing arguments, the

trial court took the matter under submission and thereafter issued a written statement of

decision. The trial court found RM had established by a preponderance of the evidence

that he was Child's presumed father under section 7611(d) because he had received Child

into his home and openly held Child out as his own.

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.

13
 The court rejected as unreasonable Mother's claim that her references to RM as

"Dad" or "Daddy" were pet names that she used in intimate situations. Regarding RM's

acknowledgement of Child as his daughter, the court stated: "If a picture is truly worth a

thousand words, [RM] has, in effect, written a novel in acknowledging [Child] as his

child." The court also found convincing the pastor's testimony that RM and Mother acted

as a couple and coparented Child. As to Mother's witnesses who denied hearing RM

acknowledge Child as his child, the court stated that one of Mother's friend's contacts

with Mother were "limited and dated"; the other friend's testimony was undermined by

her bias to support Mother; and Grandmother was "suspiciously reluctant" to

acknowledge the obvious references to "Dad" and "Daddy" in various materials including

the artwork and t-shirt created by Mother. In contrast, RM's witnesses testified in a

manner consistent with a reasonable interpretation of these materials.

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.

14
 The court also observed that in her trial brief and closing arguments, Mother

"argued her constitutional right to parent [Child], to the apparent exclusion of [RM]."

The court stated that it had "already rejected this argument," and cited case authority in

support of this conclusion.

After finding that RM had carried his burden to establish that he is a presumed

father under section 7611(d), the court addressed the question of rebuttal of the

presumption under section 7612, subdivision (a). The trial court stated the rebuttal

provision did not appropriately apply in this case because there was a policy in favor of

providing a child with two parents and no other person was competing for the second

parent position. However, at RM's request, the court made an alternative ruling based on

an assumption that section 7612, subdivision (a)'s rebuttal provision was applicable, and

found that Mother had failed to carry her burden to show by clear and convincing

evidence that RM should not be deemed Child's presumed father. In support, the court

referred back to the reasons it had delineated when finding that RM had carried his

burden to establish the presumption.

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

15
to the fundamental right of parents to make decisions concerning the care, custody, and

control of their children. (Id. at p. 66.) Based on this fundamental right, the Troxel court

concluded that application of a state statute in a manner that gave a trial court full

discretion to decide if paternal grandparent visitation was in a child's best interests,

without requiring the court to give any special weight to the mother's determination as to

the appropriate visitation amount, constituted an unconstitutional interference with the

mother's constitutional rights.9 (Id. at pp. 67-73.) To support its conclusion, the Troxel

court stated a fit parent is presumed to be acting in the child's best interests, and a court

should not be permitted to substitute its judgment regarding the child's best interests

without having to give special weight to the parent's determination on this matter. (Ibid.)

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.

9 The biological father in Troxel was deceased. (Troxel, supra, 530 U.S. at p. 60.)
16
 Relevant here, California statutes have long provided for the use of an evidentiary

mechanism—i.e., a presumption—to assist with the determination of parentage when

disputes arise concerning the rights and obligations of those charged with, or seeking to

be involved in, a parental relationship with a child. The parentage presumption set forth

in section 7611(d) of California's Uniform Parentage Act (§ 7600 et seq.) is one of these

statutes. Under this statutory provision, a person is presumed to be the natural parent of a

child if he or she "receives the child into his or her home and openly holds out the child

as his or her natural child." (§ 7611(d).)10 The California Supreme Court has concluded

that the presumption may be used even though the person is not the biological parent of

the child, stating that the " '[parentage] presumptions are driven, not by biological

[parentage], but by the state's interest in the welfare of the child and the integrity of the

family. [Citation.]' " (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 121-122 (Elisa

B.); In re Nicholas H. (2002) 28 Cal.4th 56, 58-59, 63 (Nicholas H.).) The parentage

presumption is derived from the " 'strong social policy in favor of preserving [an]

ongoing [parent] and child relationship . . . .' " (Nicholas H., supra, at p. 66.) The

presumption is based on the state's interest in " 'preserving the integrity of the family and

legitimate concern for the welfare of the child. The state has an " 'interest in preserving

and protecting developed parent-child . . . relationships which give young children social

10 At the time of trial in 2013, section 7611(d) addressed only presumed fathers, but
effective January 2014 the statute was amended to be gender neutral by referring to
presumed parents. (29G, pt. 1, West's Ann. Fam. Code (2015 supp.) § 7611, p. 11.)
Because use of the gender-neutral language does not create a substantive change, we use
this language.
17
and emotional strength and stability.' ". . . [¶] ' " ' ". . . A [parent] who has lived with a

child, treating [the child] as his [or her] son or daughter, has developed a relationship

with the child that should not be lightly dissolved." ' " ' " (Id. at p. 65, italics added.)

In S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 (S.Y.), the court applied the section

7611(d) parentage presumption in a case where one of the parents (the adoptive mother)

did not want her former same-sex partner (S.Y.) to have any parenting rights after their

relationship ended. Affirming the lower court's finding that S.Y. was entitled to

presumed parent status, the appellate court held that regardless of whether the adoptive

mother intended that S.Y. obtain parental status, the presumed parent finding was

appropriate because the adoptive mother "allowed and encouraged S.Y. to function as the

children's second parent from birth, and S.Y. openly embraced the rights and obligations

of being a parent." (Id. at pp. 1026, 1035, italics added.)

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

18
parent. However, she presents no authority or reasoned argument that a state infringes on

a biological parent's substantive due process rights by extending parental status to a

nonbiological parent in the circumstances of this case." (Id. at p. 388.)

B. Standards and Principles Relevant to the Section 7611(d) Parentage Presumption

The section 7611(d) parentage presumption does not arise until certain evidentiary

standards are met, and even when the presumption is found to exist, it is subject to

rebuttal in appropriate cases. A person who claims entitlement to presumed parent status

has the burden of establishing by a preponderance of the evidence the facts supporting the

entitlement. (S.Y., supra, 201 Cal.App.4th at p. 1031; In re Spencer W. (1996) 48

Cal.App.4th 1647, 1653.) When determining whether the person has met the statutory

requirements of receiving the child into his or her home and openly holding the child out

as his or her own, the court may consider a wide variety of factors, including the person's

provision of physical and/or financial support for the child, efforts to place the person's

name on the birth certificate, efforts to seek legal custody, and the breadth and

unequivocal nature of the person's acknowledgement of the child as his or her own. (See

S.Y., supra, at p. 1034, fn. 10.) No single factor is determinative; rather, the court may

consider all the circumstances when deciding whether the person demonstrated a parental

relationship by holding out the child as his or her own and assuming responsibility for the

child by receiving the child into his or her home. (See ibid.; Charisma R., supra, 175

Cal.App.4th at p. 376; see also Nicholas H., supra, 28 Cal.4th at pp. 60-61, fn. 2.)

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

19
evidence." (§ 7612, subd. (a).) This rebuttal provision " 'seeks to protect presumptions

of [parental status], once they have arisen, from being set aside except upon clear and

convincing evidence and only in an appropriate case.' " (Nicholas H., supra, 28 Cal.4th

at p. 66.) Thus, a party disputing a presumed parent finding has the burden to rebut the

presumption by clear and convincing evidence. (S.Y., supra, 201 Cal.App.4th at p. 1036.)

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 section 7611(d) parentage presumption in cases

where it will permit the child to have two parents, the courts have recognized "the value

of having two parents, rather than one, as a source of both emotional and financial

support . . . ." (Elisa B., supra, 37 Cal.4th at p. 123; L.M. v. M.G. (2012) 208

Cal.App.4th 133, 145-147 (L.M.); Charisma R., supra, 175 Cal.App.4th at p. 374; see

Kristine H. v. Lisa R. (2005) 37 Cal.4th 156, 166 [court's decision guided by "public

policy favoring that a child have two parents rather than one"].) However, the trial

court's consideration of the two parent policy arises only after there is an evidentiary

showing that the presumed parent statutory requirements have been met; that is, the two

parent policy should not be used to establish the presumption but rather may be

20
considered on the issue of rebuttal of the presumption. (In re D.M. (2012) 210

Cal.App.4th 541, 554-555.) As explained in D.M., "The interest in providing a child with

two parents is not a factor unless the evidence supports the presumption of parenthood.

[¶] We recognize that one important policy concern is ensuring that children have two

parents. Here, D.M.'s counsel supported [the] request for presumed father status for that

reason. But reliance upon the policy favoring two parents is misplaced if it comes before

an accurate finding of parenthood." (Id. at p. 554, some capitalization omitted.)

Thus, case authority reflects that judicial application of the section 7611(d)

parentage presumption and the two parent policy does not seek to impose a two parent

choice to the detriment of a single parent choice, but rather seeks to further a two parent

familial arrangement that has already been developed in the parenting of the child. (See

Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 178-179 [recognizing mother's "right

to be the sole parent" of child conceived through use of sperm donor, but holding that

sperm donor may seek to establish presumed parentage if mother allows relationship

between child and sperm donor to "rise to the level of presumed parent and child"].)

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.

21
To implement this elevated constitutional protection, she posits that the standard for

establishing presumed parent status should be clear and convincing evidence, not

preponderance of the evidence, and require a showing of detriment to the child if

presumed parent status is not found.

Mother's constitutional claims are unavailing given that the policy underlying the

section 7611(d) presumed parent presumption is the protection of already developed

parent-child relationships for purposes of providing stability to children. When viewed

through the lens of this core policy, the relevant inquiry is not whether a single parent

choice should be afforded the same level of protection as a two parent arrangement, but

rather whether a two parent relationship has in fact been developed with the child. In this

latter circumstance, the interests of the child in maintaining the second parental

relationship can properly take precedence over one parent's claimed desire to raise the

child alone. Also, in this context the single parent choice is not afforded less

constitutional protection than the two parent choice; rather, it is the child's welfare that

trumps the claimed single parent choice because a two parent family relationship has

already been established for the child.

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,

22
the constitutionally protected right to parent one's own child. (See id. at pp. 1026, 1037;

Charisma R., supra, 175 Cal.App.4th at pp. 388-389.)

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 section 7611(d) will not prevail if he or she

demonstrates only a caretaking role and/or romantic involvement with a child's parent.

By its terms, the statute requires an assumption of responsibility for the child that rises to

the level of receiving the child into the home, and a commitment to the child

demonstrated by an open acknowledgement of the child as his or her own. (See In re

D.M., supra, 210 Cal.App.4th at p. 544 [man claiming presumed father status must

demonstrate "existing familial bond with the child sufficient to warrant giving him rights

equal to those afforded a biological mother"].)

For example, the courts have rejected application of section 7611(d) presumed

parent status to a grandmother who assumed a parental role but never claimed the child as

her own. (In re Bryan D. (2011) 199 Cal.App.4th 127, 139-140.) In In re Spencer W.,

the court found presumed parent status did not apply to a man who lived with the mother

under circumstances indicating he did so for his own convenience and self-interest rather

than as a demonstration of his commitment to the child. (In re Spencer W., supra, 48

Cal.App.4th at p. 1653.) In In re D.M., the court concluded a man could not be declared

23
a presumed parent because although he visited with the child at another person's home, he

never took the child into his own home. (In re D.M., supra, 210 Cal.App.4th at pp. 549-

550.)

Application of the section 7611(d) parentage presumption does not mean a single

parent cannot maintain that choice without interference by a nonparent; rather, by its very

nature the presumption will arise only if the single parent allows the circumstances to

evolve to a point where the person is holding out the child as his or her own and receiving

the child into his or her home for purposes of parental caretaking. As recently stated in

Jason P. v. Danielle S., supra, 226 Cal.App.4th 167, which concerned a sperm donor's

request for presumed parent status: "Our holding that a sperm donor is not precluded

from establishing presumed parentage does not mean that a mother who conceives

through assisted reproduction and allows the sperm donor to have some kind of

relationship with the child necessarily loses her right to be the sole parent. [¶] First,

section 7611 requires a familial relationship. To qualify as a presumed parent under

subdivision (d), the presumed parent must show that he or she 'receives the child into his

or her home and openly holds out the child as his or her natural child.'. . . A mother

wishing to retain her sole right to parent her child conceived through assisted

reproduction can limit the kind of contact she allows the sperm donor to have with her

child to ensure that the relationship does not rise to the level of presumed parent and

child. [¶] Second, the presumption of parentage under section 7611 is, with certain

exceptions, a rebuttable presumption. . . . Thus, even if a sperm donor can establish that

he received the child into his home and openly held out the child as his natural child, the

24
trial court nevertheless may conclude based on other evidence that the presumption has

been rebutted and the sperm donor is not the child's natural father." (Id. at pp. 178-179,

fn. omitted.)

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 section 7611(d) parentage presumption focuses on the

legitimate state interest in protecting a developed parent-child relationship that promotes

the child's need for stability, and application of the presumption requires an evidentiary

showing that is sufficiently stringent to protect the rights of a single parent such as

Mother from unwarranted intrusion into her right to parent her child without interference.

Absent a legislative determination to the contrary, there is no basis for us to alter the

standards currently developed for application of the presumption.

25
 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.

26
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

27
determine if RM had shown presumed father status; acknowledged Mother's

constitutional argument; and when rejecting that argument cited a case (S.Y., supra, 201

Cal.App.4th 1023) that squarely rejected a claim of constitutional infringement. This

reasoning shows the court was cognizant of Mother's single parent choice and her

constitutional claim, and that its rejection of these claims was premised on a finding that

RM had a fully developed parental relationship with Child.

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

28
support of the judgment. (S.Y., supra, at p. 1031.) We defer to the trial court's credibility

resolutions and do not reweigh the evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942,

947.) If there is substantial evidence to support the ruling, it will not be disturbed on

appeal even if the record can also support a different ruling. (Ibid.)

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

29
buttresses a finding that the parties' relationship had evolved to a point that they were a

family unit consisting of a mother and father, and that Mother was not simply dating RM

with no parental connection between RM and Child.

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.

30
 DISPOSITION

The judgment is affirmed. Appellant to pay respondent's costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

MCINTYRE, J.

31