Filed 4/8/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ANTHONY MARTINEZ, H041758
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 114-CP021388)
v.
SHABNAM VAZIRI et al.,
Defendants and Respondents.
Petitioner appeals the denial of his petition to establish a parental relationship, as a
third natural parent, with his three-year-old niece (child). The trial court ruled that
petitioner met the statutory criteria of a presumed parent, but found the presumption was
rebutted under the recently amended Family Code section 7612, subdivisions (c) and (d). 1
Pursuant to section 7612, subdivision (c), the trial court found that recognizing only two
parents—child’s mother and biological father (father)—would not be detrimental to
child, and therefore ruled that, pursuant to section 7612, subdivision (d), an earlier filed
judgment of parentage for child’s father rebutted petitioner’s presumed parent status.
Petitioner contends the trial court misinterpreted the statutory standard for evaluating
detriment and thereby abused its discretion in finding there would be no detriment to
child in denying petitioner parental status.
We conclude the trial court’s determination of no detriment under section 7612,
subdivision (c) appears to have derived from an improperly narrow construction of the
statutory language, resulting in the trial court’s failure to consider all relevant factors
1
Unspecified statutory references are to the Family Code.
under the statute. Because the rebuttal of petitioner’s presumed parent status was
contingent on the trial court’s evaluation of detriment under section 7612, subdivision (c),
we will reverse the order denying the petition and remand for reconsideration.
I. STATUTORY FRAMEWORK
The Uniform Parentage Act (UPA), specifically sections 7611 and 7612, governs
this action. The UPA defines the “[p]arent and child relationship” as “the legal
relationship existing between a child and the child’s natural or adoptive parents incident
to which the law confers or imposes rights, privileges, duties, and obligations.” (§ 7601,
subd. (b).) The paternity presumptions of the UPA “ ‘are driven by state interest in
preserving the integrity of the family and legitimate concern for the welfare of the
child.’ ” (In re Nicholas H. (2002) 28 Cal.4th 56, 65 (Nicholas H.).) One purpose of the
UPA is “to distinguish those who have demonstrated a commitment to the child
regardless of biology and grant them the ‘elevated status of presumed [parenthood].’ ”
(E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1085.)
Here, the trial court determined petitioner to be a presumed parent of child
pursuant to section 7611, subdivision (d), which provides: “A person is presumed to be
the natural parent of a child if the person . . . receives the child into his . . . home and
openly holds out the child as his . . . natural child.” (§ 7611, subd. (d).) Neither side
contests this determination on appeal. The trial court found this presumption was
rebutted, however, by clear and convincing evidence under section 7612, subdivisions (c)
and (d)—a finding petitioner claims was erroneous for several reasons.
Effective January 1, 2014, section 7612, subdivisions (c) and (d) provide: “(c) In
an appropriate action, a court may find that more than two persons with a claim to
parentage under this division are parents if the court finds that recognizing only two
parents would be detrimental to the child. In determining detriment to the child, the court
shall consider all relevant factors, including, but not limited to, the harm of removing the
child from a stable placement with a parent who has fulfilled the child’s physical needs
2
and the child’s psychological needs for care and affection, and who has assumed that role
for a substantial period of time. A finding of detriment to the child does not require a
finding of unfitness of any of the parents or persons with a claim to parentage. [¶]
(d) Unless a court orders otherwise after making the determination specified in
subdivision (c), a presumption under Section 7611 is rebutted by a judgment establishing
parentage of the child by another person.” (§ 7612, subds. (c), (d).)
In enacting the current version of section 7612, subdivisions (c) and (d),2 the
Legislature made express findings: “(a) Most children have two parents, but in rare
cases, children have more than two people who are that child’s parent in every way.
Separating a child from a parent has a devastating psychological and emotional impact on
the child, and courts must have the power to protect children from this harm. [¶] (b) The
purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it
held that where there are more than two people who have a claim to parentage under the
Uniform Parentage Act, courts are prohibited from recognizing more than two of these
people as the parents of a child, regardless of the circumstances. [¶] (c) This bill does not
change any of the requirements for establishing a claim to parentage under the Uniform
Parentage Act. It only clarifies that where more than two people have claims to
parentage, the court may, if it would otherwise be detrimental to the child, recognize that
the child has more than two parents. [¶] (d) It is the intent of the Legislature that this bill
will only apply in the rare case where a child truly has more than two parents, and a
finding that a child has more than two parents is necessary to protect the child from the
detriment of being separated from one of his or her parents.” (Stats. 2013, ch. 564, § 1.)
2
The amendments to section 7612, subdivisions (c) and (d) were part of a broader
senate bill (Sen. Bill No. 274) that amended various sections of the Family Code.
3
II. TRIAL COURT PROCEEDINGS
Petitioner initiated proceedings to establish parentage of child pursuant to
sections 7611, subdivision (d) and 7612, subdivision (c). Petitioner is child’s biological
uncle. Mother is child’s mother and the respondent. Father is petitioner’s half-brother.
The court held an evidentiary hearing at which petitioner and mother were present.
Father was incarcerated at the time of the hearing and attended telephonically.
The following facts, established at the hearing on August 20, 2014, are not in
dispute. Petitioner and mother had been in a relationship for many years when mother
conceived child. A separate paternity action, brought by mother, and genetic test
established that father was child’s biological father. Father abandoned mother during her
pregnancy. He has been incarcerated for extended periods since child’s birth; in total he
has had approximately seven or eight hours of contact with child. Mother has sole legal
and physical custody of child, with no visitation to father. An unresolved Child
Protective Services (CPS) case, which arose out of the brief window of contact between
father and child, remained open as of the evidentiary hearing on petitioner’s parentage
action.
Aware that he was not the father, petitioner determined to raise child as his
daughter. During mother’s pregnancy, petitioner accompanied her to prenatal
appointments as well as parenting and birthing classes. Petitioner was present and cut the
umbilical cord at child’s birth in November 2012. Petitioner moved in with mother
immediately after child’s birth and lived with mother and child for the first six months,
during which time petitioner helped care for child. Petitioner testified that he considered
himself to be “[i]n every way father. I helped feed, took turns with the middle of the
nights, waking up, bonding, singing, goodnights.” In May 2013, petitioner moved to his
own apartment but continued to see child on average three days and two to three nights
per week. Petitioner held child out as his daughter to all but a small set of family and
friends who knew he was not the biological father.
4
In November 2013, when child was about one year old, petitioner spanked child
during a visit, leaving bruises. Petitioner testified about the incident: “I made the
mistake to spank my daughter. . . . I was completely unaware of my strength or her
sensitivity. A few bruises were left, and . . . quite an emotional scar on me once I saw the
pictures. And CPS was involved due to a mandated reporter.”
Mother noticed the bruising and called her counselor, who contacted CPS. CPS
removed child from mother for several days. In the resulting investigation, CPS found
petitioner had caused the bruises (which he admitted) and had tested positive for illegal
substances. CPS returned child to mother’s custody subject to a case plan that prohibited
contact between petitioner and child for six months. Mother and petitioner adhered to the
plan, during which time child lived exclusively with mother. After the six-month no
contact period and consultation with therapists, mother allowed petitioner to resume
visitation in range of five to 20 hours each week. Petitioner’s visitation with child was
ongoing at the time of the trial court hearing. Mother and petitioner also have stayed in
touch with a parenting coach or therapist for guidance on raising child.
Mother testified that she “would agree that [petitioner] has been the male role
model in [child’s] life.”3 “[Child] does refer to him as father,” she stated. Mother was
aware that petitioner had “issues including substance abuse” but “believed he was clean
and sober” until the November 2013 incident, when she became aware he had relapsed.
As of the hearing, mother believed petitioner had regained and maintained his sobriety.
Regarding the parentage action, mother’s testimony was that “she absolutely
acknowledges [petitioner’s] involvement and support of [child] in numerous ways, but is
in a position where she is concerned that if she were to absolutely consent to this
proceeding, that . . . might affect her custodial rights in the future.” Due to the November
3
Portions of the referenced testimony were statements made by mother’s counsel
on mother’s behalf, by offer of proof. Mother was present for the testimony.
5
2013 incident, which left “remarkable bruises” on child, CPS was “very clear . . . about
the parameters of petitioner’s involvement,” causing mother to feel “very torn” and afraid
that even though “she has continued to engage with the child therapist . . . in hopes that
she’s doing everything right by allowing [child] to resume a relationship [with
petitioner], . . . at some point, some social worker can come into this picture and say, you
know ‘you shouldn’t have been allowing for that, so we’re taking the child away.’ ”
Regardless of the outcome of the parentage proceeding, mother had “no intention” of
keeping child from petitioner and would continue to allow visitation as long as he
remained drug free.
Father did not testify or interpose a viewpoint during the proceeding, except to
disclaim at one point petitioner’s statement that father had shown no interest in being
involved with child as a father. Petitioner testified on the subject of detriment if he were
denied parentage. He stated it was obvious to anyone who had seen them together “that
[child] recognizes me as dad . . . that she asks for me up to several times a day in order to
spend time together.” Petitioner described their bond as “an emotional imprint of father
and daughter,” which would suffer if he did not have “full authority to be there . . . and
have me legally and safely protect [child] if something were to go wrong if I don’t have
those parent rights.” Petitioner also testified that if child was not a “proper heir,” he
would not be able to name her for benefits, such as life insurance, and that if mother
became incapacitated or unable to care for child, she would have “no father figure to go
with” and would be at risk of entering the foster system, “which is, number one, the most
dangerous thing ever in all of our opinions as far as I’ve been told.”
Mother testified she believed there would be no detriment if the court denied the
parentage petition, because she had not and did not intend to withhold “child from the
petitioner.” On cross-examination, mother acknowledged that given child’s ties to
petitioner, in that “she knows [him] as her father . . . in an emotional sense,” it would be
detrimental if that were taken from her. Mother also acknowledged that if something
6
happened to her, it would be detrimental to child if she went back to CPS, but stated she
did not know what would happen and “would image [sic] it would be an uncle or a
grandmother or sister.”
In closing argument, petitioner, who was self-represented, objected that testimony
about his purported drug use or relapse comprised “accusations and hearsay” and should
not have been presented.4 He argued the evidence presented by both sides showed he had
satisfied the test to be determined a presumed parent pursuant to section 7611,
subdivision (d). He pointed to the responsibilities he would have if granted parentage,
including financial, and the fact that as a parent, he would be held accountable for any
potential mistakes. He also argued that under the statutory scheme, being named a third
parent would not impinge upon the rights of child’s mother or biological father.
The trial court stated its findings on the record. The court first determined that
petitioner satisfied his burden of proof under section 7611, subdivision (d) to establish
himself as a presumed parent of child. The court then made findings under the clear and
convincing standard of section 7612, rebutting the presumption. The court found that
recognizing only two parents, mother and father, would not be detrimental to child under
section 7612, subdivision (c). The court reasoned there would be no harm from
“removing the child from a stable placement,” because that removal had already
occurred “some time ago.” Based on this finding, the court concluded that pursuant to
section 7612, subdivision (d), petitioner’s presumption of parentage was rebutted by the
earlier judgment establishing father as a natural parent.
The trial court also made findings on specific factual issues. It credited mother’s
testimony that she would continue to support the relationship between petitioner and
4
Petitioner argued that the doctrine of estoppel precluded mother from raising the
drug use issue, because neither CPS nor the district attorney sought to prosecute him and
thus that issue had “already been decided.”
7
child. It noted the possibility of consequences adverse to child’s best interest if the
juvenile court were to consider mother’s actions to be inconsistent with the best interest
of the child.5 And it deemed unpersuasive petitioner’s assertions regarding his ability to
name child as an heir or beneficiary, “inasmuch as people can name whoever they want
to as beneficiaries” and can execute wills naming anyone to be heir of the estate. It
similarly found unpersuasive the contention that child might be left without a parent if
something were to happen to mother, because mother could name a legal guardian for
child, assuming father was not then considered a fit parent to have custody.
The court denied petitioner’s petition to be recognized as a natural, third parent of
child. Petitioner timely appealed the court’s ruling following entry of the written order.
III. DISCUSSION
A. THE TRIAL COURT’S INTERPRETATION OF “STABLE PLACEMENT” UNDER
SECTION 7612, SUBDIVISION (C) AND CONSIDERATION OF “ALL RELEVANT
FACTORS”
Petitioner contends the trial court erred in interpreting the statutory mandate to
consider the “harm of removing the child from a stable placement” as referring only to
the living arrangement and not to the visitation or informal custody relationship between
petitioner and child. By narrowly interpreting “stable placement,” petitioner contends the
trial court failed to consider “all relevant factors” in evaluating the detriment child would
suffer if she were removed from the stable relationship she has with petitioner. Because
the issue presented involves the interpretation of a statute and the application of that
statute to undisputed facts, it is subject to this court’s independent review. (City of
5
The court’s statements do not reflect a clear finding on this issue, noting only
that it had “consider[ed] the potential risk of custody to the mother if she were to take
actions that the juvenile court might consider inconsistent with the best interests of the
child given the prior incidents involving CPS and the petitioner. [¶] Although, that might
not be detrimental action on the part of the mother, it certainly could be potentially . . .
adverse to the overall best interests of the child.”
8
Saratoga v. Hinz (2004) 115 Cal.App.4th 1202, 1212, citing People ex rel. Lockyer v.
Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; International Engine Parts, Inc. v.
Feddersen & Co. (1995) 9 Cal.4th 606, 611.)
Mother, appearing in propria persona without assistance of counsel, submitted a
respondent’s brief stating her concerns regarding the petition and providing further
factual development on the relationship between the parties and her actions on behalf of
child since the trial court’s ruling. This response contains no citation to the record and
appears to refer mainly to facts outside of the record or that occurred after the fact.
Under California Rules of Court, all appellate briefs must “[s]upport any reference to a
matter in the record by a citation to the . . . record . . . .” (Cal. Rules of Court,
rule 8.204(a)(1)(C).) It is also well-established that “when reviewing the correctness of a
trial court’s judgment, an appellate court will consider only matters which were part of
the record at the time the judgment was entered.” (Reserve Insurance Co. v. Pisciotta
(1982) 30 Cal.3d 800, 813.) Closely related is the rule that “ ‘contentions not raised in
the trial court will not be considered on appeal.’ ” (In re S.C. (2006) 138 Cal.App.4th
396, 406, quoting People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [waiver rule
founded on considerations of fairness and efficiency in administration of the law].)
Mother, as a self-represented party, is not exempt from these rules. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246 (Nwosu) [appellant representing himself in pro per is
not exempt from procedural rules on appeal]; Barton v. New United Motor
Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210 [party appearing in pro per “is to
be treated like any other party and is entitled to the same, but no greater consideration
than other litigants and attorneys”].) Inasmuch as the factual assertions in mother’s
9
response do not comply with these procedures, this court will disregard them.6 (See In re
S.C., supra, 138 Cal.App.4th at p. 407 [contention unsupported by record citation will be
deemed forfeit]; Nwosu, supra, at p. 1246 [failure to comply with appellate rules will
forfeit those arguments].) To the limited extent the concerns relayed in mother’s brief
may be considered argument pertaining to an issue clearly identifiable in the record on
appeal, we will consider those points.
In finding there would be no detriment to child based on “the harm of removing
the child from a stable placement” under section 7612, subdivision (c), the trial court
stated “that [removal] has already occurred well over—well, back in May of 2013, or
perhaps that was November of 2012, some time ago. . . . [C]ertainly the Court’s ruling
today would not be removing the child from that environment.” Petitioner contends these
references are to the fact that petitioner moved out of mother’s house in May 2013, or
that he was not permitted to see child for six months starting in November 2013.7
Petitioner argues this interpretation of the statute was flawed and contrary to the statutory
purpose of the presumed parent presumptions, because it is the child’s relationship with
the presumed parent, not simply their living arrangement, that must be considered. (See,
e.g., R.M. v. T.A. (2015) 233 Cal.App.4th 760, 780-781 [affirming parentage judgment
for the mother’s former boyfriend, who lived out of state, based on demonstrated
involvement with and care and affection for the child].)
The phrase “stable placement” is not defined in the Family Code, nor do any
published cases interpret this recent addition to section 7612. We need not attempt to
construe “stable placement” as a standalone phrase, however, because as a matter of basic
6
Our inability to consider new and unsupported facts in the appellate context does
not prejudice mother from seeking to introduce any relevant facts at the hearing on
remand.
7
The trial court likely misspoke when it stated “November of 2012” instead of
November 2013, as November 2012 is when child was born.
10
statutory interpretation, the words must be construed in context. The “fundamental task”
of the court in any act of statutory interpretation “is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute.” (Estate of Griswold (2001) 25
Cal.4th 904, 910.) We start “ ‘by examining the statutory language, giving the words
their usual and ordinary meaning.’ ” (Id. at p. 911.) The plain “meaning of a statute may
not be determined from a single word or sentence; the words must be construed in
context, and provisions relating to the same subject matter must be harmonized to the
extent possible.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
In the amended section 7612, subdivision (c), the phrase “harm of removing the
child from a stable placement” is in reference to the relationship “with a parent who has
fulfilled the child’s physical needs and the child’s psychological needs for care and
affection, and who has assumed that role for a substantial period of time.” (§ 7612,
subd. (c).) Any consideration of the child’s “stable placement” therefore must be in
relation to the ongoing source or sources of fulfillment of the child’s physical and
psychological needs for care and affection. Properly viewed in the context of the UPA
provisions governing the parentage presumptions, these sources of care and affection may
arise out of the child’s living arrangement, but may equally arise out of an alternative
arrangement. Thus, in R.M. v. T.A., the appellate court affirmed the unrebutted
presumption of parentage for the mother’s boyfriend, even though he had never lived
with the young child and the mother had conceived with the stated intent to raise the child
as a single mother. (R.A. v. T.A., supra, 233 Cal.App.4th at pp. 780-781.) The appellate
court explained that although the mother “may have initially intended to raise Child as a
single parent, . . . during the first two years of Child’s life Mother’s relationship with RM
developed such that RM, with Mother’s full support, undertook a parental role and
established a parent-child relationship with Child.” (Id. at p. 781, italics added.)
11
The critical distinction is not the living situation but whether a parent-child
relationship has been established.8 “ ‘[T]he premise behind the category of presumed
[parent] is that an individual . . . has demonstrated a commitment to the child and the
child’s welfare.’ ” (Jason P. v. Danielle S. (2014) 226 Cal.App.4th 167, 177, quoting
In re T.R. (2005) 132 Cal.App.4th 1202, 1211-1212.) As we have explained in the
dependency context, even a man “with no biological connection to the child, no marital
connection to the mother, and no way to satisfy the statutory presumption of paternity
may nevertheless be deemed a presumed father” if he can prove “an existing familial
relationship with the child,” a bond the likes of which “ ‘should not be lightly
dissolved.’ ” (In re D.M. (2012) 210 Cal.App.4th 541, 554, quoting In re P.A. (2011)
198 Cal.App.4th 974, 980; Nicholas H., supra, 28 Cal.4th at p. 65.) It is this familial
relationship with a parent, who has fulfilled the child’s needs for care and affection for a
considerable amount of time, that modifies the phrase “stable placement” and that
provides the context for the trial court’s evaluation of detriment under section 7612,
subdivision (c).
This interpretation of “stable placement” is consistent with a recent decision of
the Fourth District interpreting “ ‘an appropriate action’ ” (In re Donovan L. (2016)
244 Cal.App.4th 1075, 1090 (Donovan L.)) within the meaning of section 7612,
subdivision (c) to be “one in which there is an existing parent-child relationship
between the child and the putative third parent, such that ‘recognizing only two parents
would be detrimental to the child.’ ” (Donovan L., supra, at p. 1091.) Donovan L. arose
out of a dependency proceeding in which the juvenile court ruled that the child, “DJ,” had
8
We note that California courts have used a similar set of terms in the juvenile
dependency context when determining a “de facto parent.” (See, e.g., In re B. G. (1974)
11 Cal.3d 679, 692, fn. 18 [the term “de facto parent” refers to “that person who, on a
day-to-day basis, assumes the role of parent, seeking to fulfill both the child’s physical
needs and his psychological need for affection and care”].)
12
three parents under section 7612, subdivision (c) despite having found that the putative
third parent, “David,” who was DJ’s biological father and a presumed father under
section 7611, subdivision (d), had not yet developed a parent-child relationship with DJ.
(Donovan L., supra, at pp. 1078-1079.) On appeal, the court examined the language of
section 7612, subdivision (c) and related legislative history, noting the “detriment to the
child” standard protects from “the loss of an existing relationship with a nonparent.”
(Donovan L., supra, at p. 1089.) The court further noted that courts making parentage
determinations under the UPA “seek to protect existing relationships rather than foster
potential relationships.” (Id. at p. 1091.) Because David and DJ did not have a
parent-child relationship at the time of the contested disposition hearing on parentage, the
court found the juvenile court’s determination of detriment was error: “ ‘[A]n
appropriate action’ for application of section 7612, subdivision (c) requires a court to find
an existing, rather than potential, relationship between a putative third parent and the
child . . . .” (Id. at p. 1092.)
Here, the record established petitioner’s existing parental relationship and ongoing
role in child’s care, even after the November 2013 incident and intervention by CPS.
From birth until six months old, petitioner lived with mother and helped care for child.
For the next five to six months, between May and November 2013, petitioner cared for
child on average three days and two to three nights per week. After the six-month no
contact period, petitioner resumed visitation several times a week, between five and 20
hours, which has continued and which mother testified she has no intention of stopping
unless there is indication of relapse. Mother’s trial brief expressly credited petitioner
with being the male figure in child’s life since her birth, and stated that petitioner has
provided financially for child and assisted mother in caring for her. Mother further
testified that petitioner was “the male role model” in child’s life, that child knew him as
her father “in an emotional sense,” and that he supported child in numerous ways.
13
We view the trial court’s finding that removal “already occurred” and that the
court’s ruling “would not be removing the child from that environment” to be
incongruous with the undisputed evidence of petitioner’s ongoing role in caring for child
and her emotional bond to him as a father. (See § 7612, subd. (c) [court shall consider
the harm of removing the child from a stable placement with a parent who has fulfilled
the child’s physical needs and the child’s psychological needs for care and affection, and
who has assumed that role for a substantial period of time].) We conclude that the trial
court appears to have misconstrued the “harm” factor of section 7612, subdivision (c),
interpreting the statutory language as pertaining primarily or solely to child’s living
arrangement, and in so doing, failed to consider “all relevant factors” when determining
detriment to the child.
B. THE TRIAL COURT’S FINDING OF NO DETRIMENT IN DENYING THIRD PARENT
STATUS TO PETITIONER BASED ON TWO EXISTING, NATURAL PARENTS
Petitioner contends the trial court abused its discretion in finding that recognizing
only two parents would not be detrimental to child, leading to the rebuttal of the
presumption of parentage. Whether a particular case is “ ‘an appropriate action’ in which
to rebut the presumption of presumed parenthood . . . is generally a matter within the
discretion of the superior court.” (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 122
(Elisa B.).) However, “[a] discretionary order that is based on the application of
improper criteria or incorrect legal assumptions is not an exercise of informed discretion,
and is subject to reversal even though there may be substantial evidence to support that
order.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125 (Mark T.) citing
Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436.)
Because the trial court’s finding pursuant to section 7612, subdivision (c) appears
to have rested on incomplete consideration of the legal criteria set by the statute, we will
remand the matter for reconsideration. (Mark T., supra, 194 Cal.App.4th at
pp. 1131-1132 [trial court to reconsider custody on remand after misapplying pertinent
14
legal standard in evaluating relocation request].) We address an additional point raised in
petitioner’s appellate briefs to provide guidance on remand for the evaluation of
detriment pursuant to section 7612, subdivision (c) and the application of subdivision (d)
in rebutting the paternity presumption.
Petitioner argues the court’s findings under section 7612, subdivisions (c) and (d)
were inconsistent with California’s policy in favor of recognizing two parents for a child.
Petitioner essentially contends that father’s involuntary adjudication as the biological
father of child is insufficient to serve the statutory purpose and state interest behind the
two-parent interest, because father never sought to be recognized as child’s presumed
father, has had no parental relationship with child, and has no legal or physical custody,
or visitation. He argues that if anything were to happen to mother, it is unlikely father
would willingly take custody of child—if he were not incarcerated at the time—or that
CPS would not prevent him from doing so. Petitioner contends that in reality, child only
has two real parents, and one of them is petitioner.
We recognize that ensuring children have two parents is an important policy
concern furthered by the UPA. (In re D.M., supra, 210 Cal.App.4th at p. 554.) In
Nicholas H., supra, 28 Cal.4th at page 70 and Elisa B., supra, 37 Cal.4th at page 123, the
California Supreme Court clarified that it is not an appropriate action for rebutting the
presumption of parenthood, within the meaning of section 7612, when to do so would
leave the children with only one parent. “By recognizing the value of determining
paternity, the Legislature implicitly recognized the value of having two parents, rather
than one, as a source of both emotional and financial support, especially when the
obligation to support the child would otherwise fall to the public.” (Elisa B., supra, at
p. 123; see also Librers v. Black (2005) 129 Cal.App.4th 114, 123 (Librers)
[“[W]henever possible, a child should have the benefit of two parents to support and
nurture him or her”].) In enacting the current version of section 7612, subdivision (c), the
Legislature expanded that notion to recognize that “in rare cases, children have more than
15
two people who are that child’s parent in every way,” and in certain rare cases, “a finding
that a child has more than two parents is necessary to protect the child from the detriment
of being separated from one of his or her parents.” (Stats. 2013, ch. 564, § 1(a), (d).)
We find petitioner’s policy argument regarding the preference for child to have
two “real” parents is germane to the trial court’s evaluation of detriment pursuant to
section 7612, subdivision (c), because the statute directs the court to consider “all
relevant factors.” In this case, one such factor is not only the willingness and availability
of one of the parents to take custody of child, if such a need were to arise, but whether a
familial relationship exists between that parent and child such that the recognized value
of two parents can be fulfilled in a meaningful way. That value may be expressed in the
opportunity for financial support and its appurtenant rights and benefits. (See Elisa B.,
supra, 37 Cal.4th at pp. 122-123 [value of two parents as source of financial support,
including rights and benefits that otherwise would fall to the public].) And it certainly
finds expression in the welfare of the child by assuring stability and continuity of care.
(See Nicholas H., supra, 28 Cal.4th at p. 65 [state interest in “ ‘ “ ‘preserving and
protecting the developed parent-child . . . relationships which give young children social
and emotional strength and stability’ ” ’ ”]; Librers, supra, 129 Cal.App.4th at p. 123
[benefit of two parents “to support and nurture” the child].) Under the circumstances
presented here, a meaningful evaluation of potential detriment to the child pursuant to
section 7612, subdivision (c), must include a realistic assessment of those parents’
respective roles in providing care and support for the child. As the statute dictates, such
consideration does not require a finding of unfitness of any of the parents. (§ 7612,
subd. (c).)
We do not find a similar assessment is required under section 7612,
subdivision (d), because a finding under subdivision (d) follows, if at all, a finding under
subdivision (c). (§ 7612, subd. (d).) Whereas subdivision (c) requires consideration in
an appropriate action and based on all relevant factors, which in some instances will
16
include whether “recognizing only two parents” confers the benefits generally associated
with establishing two parents for a child, there is no equivalent weighing of factors under
subdivision (d). The trial court’s inquiry pursuant to section 7612, subdivision (d) is
much narrower and only requires the court to determine whether there is clear and
convincing evidence of a judgment of paternity. (Cf. Nicholas H., supra, 28 Cal.4th at
p. 63 [distinguishing language of then § 7612 that the parentage presumption “ ‘may be
rebutted in an appropriate action only by clear and convincing evidence’ ” from
language that the presumption “is rebutted by a judgment establishing paternity of the
child by another [person]”].) Unless the trial court has made a finding of detriment under
section 7612, subdivision (c), evidence of a judgment establishing parentage by another
person rebuts the section 7611 parentage presumption. (§ 7612, subd. (d).)
Although the trial court correctly applied section 7612, subdivision (d) in this
action,9 it did so based on its preliminary determination under section 7612,
subdivision (c). That determination derived from an improper interpretation of the
statutory language and failed to account for “all relevant factors” under section 7612,
subdivision (c). Accordingly, the trial court’s rebuttal finding pursuant to section 7612,
subdivision (d) must be reversed.
IV. DISPOSITION
The order denying petitioner’s request to be deemed a third parent to child is
reversed. The matter is remanded for a hearing to reconsider the issue of detriment under
Family Code section 7612, subdivision (c) consistent with this opinion, the outcome of
which will determine whether the action is an appropriate one for finding that more than
two persons with a claim to parentage are parents, or whether petitioner’s presumed
9
The parties do not dispute that there is a preexisting judgment establishing
father’s paternity of child.
17
parent status is rebutted under Family Code section 7612, subdivision (d). Petitioner is
entitled to costs on appeal.
Premo, J.
WE CONCUR:
Rushing, P.J.
Márquez, J.
Martinez v. Vaziri et al.
H041758
18
Trial Court: Santa Clara County Superior Court
Superior Court No. 114-CP021388
Trial Judge: Hon. Drew C. Takaichi
Counsel for Plaintiff/Appellant: O’Reilly Law Office
Anthony Martinez Kathleen O’Reilly
Counsel for Defendants/Respondents: In propria persona
Shabnam Vaziri
Brad J. Martinez
Martinez v. Vaziri et al.
H041758