Filed 7/19/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
M.M., D077468
Plaintiff and Appellant,
v. (Super. Ct. No. EFL002133)
D.V. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Imperial County, L.
Brooks Anderholt, Judge. Affirmed.
Law Offices of Ben Aguilar and Benjamin Aguilar, for Plaintiff and
Appellant.
Stephen Temko, for Defendants and Respondents.
M.M. appeals from a judgment denying his petition to establish a
parental relationship with his biological son (Child). M.M. filed the petition
after he learned, when Child was two years old, that he was Child’s biological
father. M.M. alleged that he was entitled to status as a presumed father
under the principles of due process and equal protection set forth in Adoption
of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.) for unwed fathers who are
prevented by the mother or by a third party from establishing presumed
father status. M.M. does not dispute the parental status of T.M., who is
married to Child’s mother (Mother), is listed on Child’s birth certificate as the
father, and signed a Voluntary Declaration of Parentage at the Child’s birth.
However, M.M. contends that he should be accorded status as Child’s third
parent pursuant to Family Code section 7612, subdivision (c).1
For the purpose of our analysis, we assume without deciding that M.M.
is entitled to presumed parent status as a Kelsey S. father, making him
eligible to be adjudged a third parent to Child. However, even assuming that
M.M. is entitled to presumed parent status, we conclude that the trial court
properly determined that M.M. should not be adjudged a third parent due to
his lack of an existing relationship with Child. Accordingly, we affirm the
judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
M.M. and Mother were in a relationship in 2015, which overlapped
with the time period during which Mother began a relationship with T.M.2
Mother discovered a pregnancy in December 2015 and informed M.M. that he
might be the father. However, after a doctor’s visit in January 2016, Mother
1 Unless otherwise indicated, all further statutory references are to the
Family Code.
2 The trial on M.M.’s petition was not transcribed by a court reporter.
Accordingly, the parties arrived at a settled statement, which sets forth the
testimony presented at trial, and the trial court certified the settled
statement. Our factual recitation is based on the settled statement, the trial
court’s factual findings, and the content of the trial exhibits that are included
in the appellate record. Although those exhibits are not specifically identified
in the settled statement, the exhibit list and a notation on each exhibit
indicate that the exhibits were admitted into evidence at trial.
2
told M.M. that based on the doctor’s estimate of the date of conception, M.M.
could not be the father.
The Child was born in July 2016. At the time, T.M. believed he was
Child’s father. T.M. therefore signed a voluntary declaration of parentage
and was listed as Child’s father on the birth certificate. T.M. and Mother got
married when Child was seven months old. In July 2017, a daughter was
born to T.M. and Mother. Because the couple’s daughter was discovered to
have a rare genetic condition that was not present in Child, Mother and T.M.
decided to reach out to M.M. to find out if he was Child’s father, rather than
T.M. M.M. agreed to submit to DNA testing. The results of the DNA test
established in January 2019 that M.M. is the biological father of Child. At
the time, Child was two years old.
After discovering that M.M. was Child’s biological father, Mother
permitted M.M. to meet with Child on several occasions for brief periods of
time.3 However, as the trial court found, “there have been no real visits nor
was there evidence of any type of bonding between [M.M.] and [Child].”
Mother permitted contact between M.M. and Child for a few weeks or
months,4 but she then cut off contact after deciding that “it would be
3 As shown by exhibits presented at trial, and as reflected in the settled
statement, in January 2019, Mother sent a text message to M.M., in which
she stated that she was sorry that she previously told M.M. that he was not
the father of Child. According to the settled statement, Mother testified that
she sent the text message because she was experiencing a manic episode and
“did not know what she was saying.”
4 The record of the evidence presented at trial does not reflect the exact
time period during which Mother allowed M.M. to have contact with Child.
According to M.M.’s appellate brief, Mother cut off contact in May 2019. That
timeline is consistent with Mother’s statement in her responsive declaration
3
confusing and traumatizing to try to introduce a stranger into the child’s life
and to take away some of his time with the person he viewed as his father.”
According to the parties’ settled statement, M.M. testified that if he had
“known prior to January 2019 that [Child] was his biological son, he would
have assumed his obligations. But he testified he never offered to pay nor
has [h]e paid any child support.”
As reflected in the settled statement, “The actions [M.M.] took to
establish a relationship with [Child] once he was informed by Mother she
would not allow him to have a relationship with the minor, was to retain
counsel and open a case to establish his parental rights.” Specifically, on
September 16, 2019, M.M. filed a petition to establish a parental relationship
with Child. Mother filed a response, and T.M. was joined in the action due to
his status as Child’s father based on, among other things, his execution of a
Voluntary Declaration of Parentage at Child’s birth. In connection with a
motion to dismiss filed by T.M. and Mother, M.M. clarified that he was not
attempting to challenge T.M.’s status as Child’s father and was not seeking to
set aside the Voluntary Declaration of Parentage signed by T.M. Instead,
M.M. was seeking to be recognized as a third parent to Child pursuant to
section 7612, subdivision (c).
A trial was held on February 4, 2020, at which M.M., Mother, and T.M.
testified. The trial court issued a ruling on February 24, 2020, denying
M.M.’s petition. The trial court concluded that M.M. was not eligible to be
adjudged a third parent under section 7612, subdivision (c), because he could
obtain such a ruling only if he first established that he was a presumed
to M.M.’s petition that “[i]n May, after a couple of months of contemplating
the decision, I informed [M.M.] that I decided it would be best for [Child] to
grow up knowing about him, but to not have ongoing contact and/or visitation
until [Child] was older.”
4
parent. M.M. sought presumed parent status under the principles of equal
protection and due process set forth in Kelsey S., supra, 1 Cal.4th 816
applicable to unwed biological fathers who are thwarted in voluntarily
undertaking a parental role.5 The trial court held that M.M. did not meet
the requirements to be identified as a Kelsey S. father because M.M. did not
do enough to come forward promptly and assume parental responsibilities:
“It would have been incumbent upon [M.M.] to have
demanded testing when first informed he might have been the
father should he have truly wished to take his position as
[Child’s] father. Instead, he was satisfied with the
representations made to him at the time. He chose to waive any
rights he might have had at the time by not taking affirmative
steps to confirm what he was told. The court would be justified in
ending its analysis with this finding but goes further by fully
analyzing the applicable Family Code sections in connection with
[M.M.’s] argument he was misled and his notice was delayed.
Even accepting the late notice argument and [M.M.] was delayed
in accepting his role as a father, his failure to pay support or even
offer support once he says he began to hold [Child] out as his
child was an important factor for the court’s decision in this
case.”
5 In Kelsey S., our Supreme Court held that the statutory scheme
governing paternity decisions “violates the federal constitutional guarantees
of equal protection and due process for unwed fathers to the extent that the
statutes allow a mother unilaterally to preclude her child’s biological father
from becoming a presumed father and thereby allowing the state to
terminate his parental rights on nothing more than a showing of the child’s
best interest. If an unwed father promptly comes forward and demonstrates
a full commitment to his parental responsibilities—emotional, financial, and
otherwise—his federal constitutional right to due process prohibits the
termination of his parental relationship absent a showing of his unfitness as
a parent. . . . [W]hen the father has come forward to grasp his parental
responsibilities, his parental rights are entitled to equal protection as those of
the mother.” (Kelsey S., supra, 1 Cal.4th at p. 849.)
5
After concluding that M.M. was not entitled to be treated as a
presumed father pursuant to Kelsey S., supra, 1 Cal.4th 816, the trial court
gave an alternative ground for its denial of M.M.’s request that he be
adjudged to be a third parent under section 7612, subdivision (c).
Specifically, the trial court explained that even if it assumed for the sake of
its analysis that M.M. was a presumed parent, this was not an appropriate
action in which to find that Child has three parents. As the trial court
explained, the relevant inquiry under section 7612, subdivision (c) is whether
it would be detrimental to Child to have only two parents. Citing In re
Donovan L. (2016) 244 Cal.App.4th 1075 (Donovan), the trial court concluded
that because M.M. did not have an existing relationship with Child, no
detriment was shown. The trial court’s ruling concluded with the observation
that “[n]othing in this decision prevents the parties from bringing [M.M.] into
[Child’s] life at a later time as indicated in the pleadings and testimony
received.”
M.M. appeals from the judgment.
II.
DISCUSSION
The issue before us is whether the trial court erred in ruling that M.M.
should not be adjudged to be a third parent of Child. We begin with an
overview of the applicable legal standards.
A. Applicable Legal Standards
“The Uniform Parentage Act (UPA) (§ 7600 et seq.) ‘provides the
framework by which California courts make [parentage] determinations.
(§ 7610, subd. (b).)’ ” (In re L.L. (2017) 13 Cal.App.5th 1302, 1309 (L.L.).)6
6 Recent amendments to the Family Code have revised certain provisions
6
A person qualifies as a natural parent either by giving birth or by meeting
one of the applicable statutory methods for being adjudged a natural parent.
(§ 7610, subd. (a).) Section 7611 sets forth several rebuttable presumptions
through which a person may be presumed to be a natural parent (i.e., “a
presumed parent” or “presumed father”).7 “Biological fatherhood does not, in
to be gender neutral, such as referring to a “voluntary declaration of
parentage” instead of a “voluntary declaration of paternity.” (Stats. 2018, ch.
876, § 29.) We have therefore parenthetically changed some of the
terminology in earlier case law to conform it to current usage, although such
changes have not been feasible in all instances.
7 Section 7611 sets forth the following grounds for creating presumed
parent status:
“a) The presumed parent and the child’s natural mother are, or
have been, married to each other and the child is born during the
marriage, or within 300 days after the marriage is terminated by
death, annulment, declaration of invalidity, or divorce, or after a
judgment of separation is entered by a court.
“(b) Before the child’s birth, the presumed parent and the child’s
natural mother have attempted to marry each other by a
marriage solemnized in apparent compliance with law, although
the attempted marriage is or could be declared invalid, and either
of the following is true:
“(1) If the attempted marriage could be declared invalid only by a
court, the child is born during the attempted marriage, or within
300 days after its termination by death, annulment, declaration
of invalidity, or divorce.
“(2) If the attempted marriage is invalid without a court order,
the child is born within 300 days after the termination of
cohabitation.
“(c) After the child’s birth, the presumed parent and the child’s
natural mother have married, or attempted to marry, each other
by a marriage solemnized in apparent compliance with law,
although the attempted marriage is or could be declared invalid,
and either of the following is true:
7
and of itself, qualify a man for presumed father status under section 7611.
On the contrary, presumed father status is based on the familial relationship
between the man and child, rather than any biological connection. [¶]
Section 7611 also recognizes two other grounds for qualification as a
presumed father that are outside of the [UPA]. These are an executed
voluntary declaration of [parentage] (§ 7570 et seq.) and the so-called
conclusive presumption of paternity (. . . § 7540), which dictates the finding
that a mother’s husband is her child’s father, provided the mother and her
husband were married and cohabiting when the child was conceived.” (In re
J.L. (2008) 159 Cal.App.4th 1010, 1018 (J.L.).) In addition, as we have
explained, pursuant to Kelsey S., supra, 1 Cal.4th 816, “an unmarried
biological father may, under narrow circumstances, assert constitutional
paternity rights, even though he does not qualify under any of the
presumptions listed in section 7611.” (J.L., at p. 1018.)
Here, it was undisputed that T.M. is legally recognized as Child’s
father because T.M. executed a Voluntary Declaration of Parentage at the
time of Child’s birth.8 With certain exceptions that are not relevant here, a
“(1) With the presumed parent’s consent, the presumed parent is
named as the child’s parent on the child’s birth certificate.
“(2) The presumed parent is obligated to support the child under
a written voluntary promise or by court order.
“(d) The presumed parent receives the child into their home and
openly holds out the child as their natural child.
“(e) The child is in utero after the death of the decedent and the
conditions set forth in Section 249.5 of the Probate Code are
satisfied.” (§ 7611.)
8 Even without the Voluntary Declaration of Parentage, T.M. would be
Child’s presumed father based on either section 7611, subdivision (c), under
which, “[a]fter the child’s birth, the presumed parent and the child’s natural
8
Voluntary Declaration of Parentage “is equivalent to a judgment of parentage
of the child and confers on the declarant all rights and duties of a parent.”
(§ 7573.) A biological father may bring a motion, within a limited time frame,
to attempt to set aside another man’s Voluntary Declaration of Parentage.
(§ 7577.) However, M.M. made no attempt to do so here.9 Instead, M.M.
acknowledges that T.M. is legally recognized as Child’s father.
M.M. does not question that Child already has two legally recognized
parents (Mother and T.M.), but he seeks to be adjudged a third parent to
Child. A request to be adjudged a third parent is governed by section 7612,
subdivision (c). According to that provision, “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 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.” (§ 7612, subd. (c).)
mother have married . . . and . . . [w]ith the presumed parent’s consent, the
presumed parent is named as the child’s parent on the child’s birth
certificate”; or section 7611, subdivision (d), under which “[t]he presumed
parent receives the child into their home and openly holds out the child
as their natural child.”
9 M.M. found out that he was Child’s biological father after the
expiration of the two-year period during which a party may bring an action to
set aside a Voluntary Declaration of Parentage. (§ 7577, subd. (d) [“The
action shall be filed not later than two years after the effective date of the
declaration.”].)
9
This statutory provision “allows a court to recognize three parents only in
‘rare cases’ where a child truly has more than two parents.” (Donovan, supra,
244 Cal.App.4th at p. 1087.) Specifically, “ ‘an 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, such that ‘recognizing only two parents would be detrimental to the
child.’ ” (Id. at p. 1092, italics added.)
As stated in section 7612, subdivision (c), only a person “with a claim to
parentage” is eligible to be a third parent. Thus, not only must a person
seeking to become a third parent show that it would be detrimental to the
child to have only two parents, the putative third parent must meet the
preliminary hurdle of establishing that he or she qualifies as a presumed
parent. (In re M.Z. (2016) 5 Cal.App.5th 53, 66 (M.Z.) [“a court considering a
request for status as a third parent under section 7612, subdivision (c) should
initially determine whether or not a person seeking status as a third parent
can establish a claim to parentage under the Uniform Parentage Act. Such
an existing parent-child relationship is necessary before determining if
recognition of only two parents would be detrimental to the child.”].) One
way to qualify as a presumed parent is by meeting the requirements under
Kelsey S., supra, 1 Cal.4th 816. (J.L., supra, 159 Cal.App.4th at p. 1023
[“Although section 7611 makes no provision for a Kelsey S. father in its list of
presumptions, a father asserting valid Kelsey S. rights may effectively qualify
for presumed father status as the result of his constitutional right to parent,
which overrides any contrary statutory direction.”]; J.R. v. D.P. (2012) 212
Cal.App.4th 374, 389 (J.R.) [“for purposes of resolving conflicting
presumptions . . . a Kelsey S. father is the equivalent of a statutorily
presumed father”].) A biological father will qualify as a Kelsey S. father only
10
if he “promptly comes forward and demonstrates a full commitment to his
parental responsibilities—emotional, financial, and otherwise,” and must
have “done all that he could reasonably do under the circumstances,” despite
having been thwarted by a third party from obtaining presumed parent
status. (Kelsey S., at pp. 849-850.) To establish his status as a presumed
parent, M.M. relies solely on his contention that he meets the requirements
to be a Kelsey S. father. M.M. acknowledges that he does not meet any of the
statutory definitions of a presumed parent set forth in section 7611.
B. Substantial Evidence Supports a Finding That It Would Not Be
Detrimental to Child to Have Only Two Parents
As we have explained, the trial court concluded that (1) M.M. did not
qualify as a presumed parent under the principles set forth in Kelsey S., and
(2) even assuming for the sake of its analysis that M.M. did qualify as a
presumed parent, this was not an appropriate action in which to recognize
M.M. as a third parent because it would not be detrimental to Child to have
only two parents.10 We proceed by resolving M.M.’s appeal based on the
10 As an additional part of its ruling, after assuming for the sake of
analysis that M.M. was a Kelsey S. father, the trial court also conducted an
analysis under section 7612, subdivision (b) to determine whether T.M. or
M.M. had the stronger claim to parentage. Under that provision, “If two or
more presumptions arise under Section 7611 that conflict with each other, or
if one or more presumptions under Section 7611 conflict with a claim by a
person identified as a genetic parent pursuant to Section 7555, the
presumption that on the facts is founded on the weightier considerations of
policy and logic controls.” (§ 7612, subd. (b).) The trial court concluded that
T.M.’s presumption prevailed over that of M.M.’s. We note, however, that the
trial court’s analysis under section 7612, subdivision (b) was unnecessary
because, due to the Voluntary Declaration of Parentage executed by T.M.,
which M.M. did not attempt to set aside, T.M. was already, in effect,
adjudged to be Child’s parent. (§ 7573; J.R., supra, 212 Cal.App.4th at p. 387
[“a voluntary declaration of paternity has the force and effect of a judgment,
11
second ground identified by the trial court. Specifically, we assume without
deciding that M.M. qualifies as a Kelsey S. father, and we then examine
whether this is an appropriate action in which to recognize M.M. as a third
parent.11 (Cf. Donovan, supra, 244 Cal.App.4th at p. 1086 [analyzing
whether a biological father should be recognized as a third parent after
“assum[ing], without deciding, that there is substantial evidence to support
the . . . court’s ruling that [the biological father] qualifies as a presumed
parent”].)
As we have explained, under section 7612, subdivision (c), “[i]n 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
unless and until it is set aside”].) Similarly, although Mother and T.M.’s
appellate brief includes a discussion applying section 7612, subdivision (b) to
the facts of this case, that discussion is not applicable because M.M. has
conceded that T.M. is properly legally recognized as Child’s parent and has
not sought to set aside the Voluntary Declaration of Parentage.
11 Although we need not, and do not, resolve the issue of whether the trial
court erred in concluding that M.M. did not qualify as a Kelsey S. father, we
disapprove of certain of the trial court’s reasoning on that issue. Specifically,
the trial court stated, “It would have been incumbent upon [M.M.] to have
demanded testing when first informed he might have been the father should
he have truly wished to take his position as [Child’s] father. Instead, he was
satisfied with the representations made to him at the time. He chose to
waive any rights he might have had at the time by not taking affirmative
steps to confirm what he was told.” The uncontradicted facts in the record
establish that shortly after discovering the pregnancy, Mother told M.M. that
he could not be the father based on a medical determination of the date of
conception. The record contains no support for a finding that M.M.
reasonably should have been skeptical of Mother’s representation about the
medical determination or that M.M. should have doubted a medical doctor’s
findings about the date of conception. Therefore, in our view, no substantial
evidence supports the trial court’s ruling that a M.M. should have “tak[en]
affirmative steps to confirm what he was told.”
12
recognizing only two parents would be detrimental to the child.” (§ 7612,
subd. (c).) We review the trial court’s findings under section 7612,
subdivision (c) to determine whether they are supported by substantial
evidence. (Donovan, supra, 244 Cal.App.4th at p. 1088.) “ ‘We defer to the
trial court’s credibility resolutions and do not reweigh the evidence.
[Citation.] 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.’ ”
(M.Z., supra, 5 Cal.App.5th at p. 64.)
In Donovan, supra, 244 Cal.App.4th 1075, this court examined the
legislative history of section 7612, subdivision (c), and the UPA’s approach to
parentage, to determine what constitutes “ ‘an appropriate action’ ” in which
to find a child has more than two parents. (Id. at pp. 1088-1092.)
Reviewing the legislative history, Donovan concluded that the
Legislature intended section 7612, subdivision (c) “to be narrow in scope and
to apply only in ‘rare cases’ in which a child ‘truly has more than two parents’
who are parents ‘in every way.’ (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.)
In those rare cases, the Legislature sought to protect the child from the
‘devastating psychological and emotional impact’ that would result from
‘[s]eparating [the] child from a parent.’ (Ibid.) Accordingly, ‘an appropriate
action’ for application of section 7612, subdivision (c) is 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.’ (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.)” (Donovan, supra, 244
Cal.App.4th at pp. 1090-1091.)
Donovan then explained that its interpretation of what constitutes “ ‘an
appropriate action’ ” under section 7612, subdivision (c) is in harmony with
the broader statutory framework for determining parentage under the UPA.
13
(Donovan, supra, 244 Cal.App.4th at p. 1091.) As Donovan observed, “[i]n
making parentage determinations under the UPA, courts seek to protect
existing relationships rather than foster potential relationships,” and “[o]ver
the past three decades, courts increasingly have looked to the nature of the
parent-child relationship to resolve paternity disputes.” (Ibid., italics
omitted.)
As M.M.’s attempt to be adjudged a third parent depends on a
parentage claim arising under Kelsey S., supra, 1 Cal.4th 816, one part of
Donovan’s discussion of the case law arising under the UPA deserves special
attention. In reviewing the case law, Donovan stated that “although our
Supreme Court has rejected the notion that an unwed biological father has a
protected liberty interest in establishing a relationship with his child, the
court has recognized a biological father’s liberty interest ‘in maintaining and
preserving an existing parent-child relationship.’ ” (Donovan, supra, 244
Cal.App.4th at pp. 1091-1092.) However, as Donovan observed, “[a]n
exception to this general principle can be found in Kelsey S., supra, 1 Cal.4th
at pages 848-849, which recognized a liberty interest where a biological
father is precluded from establishing a relationship with his child.”
(Donovan, at p. 1092, fn. 16.) Donovan expressly declined to consider how the
“policy motivations underlying Kelsey S.” impacted its analysis of section
7612, subdivision (c), because its assumption that the biological father was a
presumed parent did not arise under Kelsey S. (Ibid.) Here, in contrast, we
have assumed that M.M. is a presumed parent based on Kelsey S.
Although Donovan did not consider the significance of Kelsey S. in
deciding how to interpret section 7612, subdivision (c), we find no basis to
conclude that Donovan’s interpretation of section 7612, subdivision (c) is
inapplicable when a presumed parent seeking to be adjudged a third parent
14
is a Kelsey S. father. The constitutional rights to due process and equal
protection accorded to a Kelsey S. father are honored by allowing a Kelsey S.
father to participate, just like any other presumed parent, in a proceeding to
be adjudged a third parent. However, as section 7612, subdivision (c)
provides, the ultimate focus in such a proceeding must be on whether it
would be detrimental to the child to have only two parents, not on whether it
is in the putative parent’s interest to obtain third parent status. That
inquiry is the same regardless of whether the person seeking to be adjudged a
third parent is a Kelsey S. father or is a presumed parent based on one of the
statutory grounds in section 7611.
Therefore, in assessing M.M.’s petition to be adjudged a third parent,
we apply the approach set forth in Donovan, under which we determine
whether there is an “existing, rather than potential, relationship between a
putative third parent and the child, such that ‘recognizing only two parents
would be detrimental to the child.’ ” (Donovan, supra, 244 Cal.App.4th at
p. 1092; see also M.Z., supra, 5 Cal.App.5th at pp. 66-68 [the court properly
found that § 7612, subd. (c), did not apply because the putative third parent
did not have existing parent-child relationship with the children]; L.L., supra,
13 Cal.App.5th at p. 1317 [“Absent an existing relationship with [the child],
there is no ground on which [the biological father] could be recognized as a
third parent under section 7612, subdivision (c).”].) This inquiry is necessary
because “[a] person who lacks an existing parent-child relationship is not a
child’s ‘parent in every way.’ . . . Nor would separation from such a person
cause ‘devastating psychological and emotional impact on the child.’ ”
(Donavan, at pp. 1092-1093.) As subsequent case law emphasizes, the
question is not whether it would be detrimental to the child if a third parent
15
was added, but rather whether it would be detrimental to the child to have
only two parents. (L.L., at p. 1316.)
Here, the trial court found that “[Mother] and [T.M.] have been the only
parents [Child] has known since birth,” and that although “[M.M.] has seen
[Child] on several occasions for brief periods of time[,] . . . there have been no
real visits nor was there evidence of any type of bonding between [M.M.] and
[Child].” Expressly relying on Donovan, supra, 244 Cal.App.4th 1075, the
trial court concluded that “it is not detrimental to [Child] to have only two
parents.” The trial court explained that M.M.’s case was like Donovan in
which “the parent in [M.M.’s] position did not have an existing relationship
and thus there was no substantial evidence to support a detriment finding
pursuant to . . . section 7612[, subdivision] (c).”
The trial court’s finding that M.M. did not have a relationship with
Child is supported by substantial evidence. According to the settled
statement, M.M. testified that “Mother’s misrepresentation about [M.M.] not
being the child’s biological father had resulted in him not having a
relationship with [Child].” (Italics added.) Further M.M. testified that “he
wanted to begin his relationship with [Child] now and not wait even longer,”
implying that he believed he had not yet established a relationship with
Child. (Italics added.)
Despite the substantial evidence supporting a finding that he does not
have a relationship with Child, M.M. argues that the trial court should have
adjudged him to be a third parent because, based on certain statements
appearing in the trial exhibits, it could be inferred that Mother and T.M. may
not have a stable marriage, or that one or both of them may suffer from
mental health issues. Based on those inferences, M.M. argues that it would
be detrimental for Child to have only two parents because a third parent
16
could lend additional stability. We reject the argument. The inferences that
M.M. advances are unduly speculative, as is the possibility that any marital
instability or mental health issues would impact Child to such an extent that
it would be detrimental to have only two parents. Moreover, the trial court
reasonably could determine that even if the potential future problems
identified by M.M. might arise, it would still not be detrimental to Child to
have only two parents, given M.M.’s lack of an existing relationship with
Child.
M.M. also argues that “[C]hild will not be detrimentally impacted by
recognizing three parents because he will not be removed from his current
placement,” in that he will continue to reside with Mother and T.M. We
reject M.M.’s argument because it misapprehends the appropriate inquiry.
As we have explained, the issue is whether it would be detrimental to Child
to have only two parents, not whether it would be detrimental to the child if a
third parent was added. (L.L., supra, 13 Cal.App.5th at p. 1316.)
Finally, M.M. contends that the trial court should have adjudged him
to be a third parent because Child is “being denied [the] possibility of
continuing to develop a bond with his biological father and his biological
grandparents.” M.M. argues that it is detrimental to Child to deny M.M.
status as a third parent because “[Child] one day, probably before he turns 18
years old, will find out that when his biological father tried to continue
developing his [relationship] with him after they spent time together in San
Diego, his own M[other] and [T.M] denied him the right to have a
relationship with his biological father without articulating any good reason
other than citing the problem that [Mother] created by misleading [M.M.] and
[T.M.]” This argument fails because it is precisely the type of detriment to a
child that Donovan explained is insufficient, without more, to support a
17
judgment recognizing a biological father as a third parent when the biological
father does not have an existing relationship with his child. The trial court
in Donovan conferred third parent status on a biological father who did not
have a relationship with his child, reasoning that because of the genetic
connection, it would be detrimental to the child to be denied a chance to
continue to develop a relationship with the biological father and his extended
family, and that the child would be negatively impacted when he ultimately
discovered his true heritage. (Donovan, supra, 244 Cal.App.4th at p. 1082.)12
Donovan rejected that approach, explaining, among other things, that “[t]he
court’s speculation as to potential harm from [the child] discovering his
biological father later in life is not substantial evidence supporting a finding
of detriment within the meaning of section 7612, subdivision (c).” (Id. at
p. 1093.) As Donovan explained, such an approach “would open the
floodgates to virtually all biological fathers who may qualify as a presumed
parent under section 7611 and seek to form a relationship with the child.
Such an interpretation would apply far beyond the ‘rare case’ envisioned by
the Legislature.” (Ibid.)
12 Specifically, the trial court in Donovan stated, “Now, I want to be clear.
[The statute] says ‘in determining detriment to the child, the court shall
consider all rel[evant] factors.’ And that’s what I’m considering. In
particular, I am considering the fact that this child has a cultural heritage;
that this child has DNA running through his veins; that this child has
another family that was introduced to him at a younger [stage of his] life who
seemed to want to be involved with him; that this child will, in fact, have to
do those family trees; that this child will, if he finds out at age 21 that he had
a different bio father that was hidden from him, will have an effect on him. It
will affect him—because I’ve been doing this a long time and I’ve seen those
type of effects. It’s just one of those things. It’s not fair to lie to these kids
about this type of situation, it just isn’t.” (Donovan, supra, 244 Cal.App.4th
at p. 1082.)
18
In sum, we conclude that substantial evidence supports a finding that,
due to M.M.’s lack of a relationship with Child, it would not be detrimental
for Child to have only two parents. This was, therefore, not an appropriate
action in which to recognize three parents pursuant to section 7612,
subdivision (c).
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
DO, J.
19