Petition for Writ of Certiorari — W. S., Petitioner v. S. T., et al.

App. 1

Filed 2/1/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF

THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

W.S.,

Plaintiff and Appellant,

v.

H042611

(Santa Clara County

Super. Ct. No. 1-14CP021742)

S.T.,

Defendant and Respondent.

In 2014, appellant W.S. filed a petition to establish

a parental relationship with his daughter (daughter).

W.S. alleged he was daughter’s biological father. He

claimed he had a relationship with S.T., daughter’s

mother, while she was married to her husband, Martin

T. W.S. requested joint legal and physical custody,

equal time visitation, and mediation to work out a parenting plan. He also requested daughter’s last name be

changed. The trial court denied W.S.’s requests, finding

he was not a presumed parent within the meaning of

Family Code section 7611, subdivision (d).1

On appeal, W.S. argues the trial court applied an

incorrect legal standard when it found he was not a

presumed parent under section 7611, subdivision (d).

Furthermore, he claims the court failed to exercise its

1

Unspecified statutory references are to the Family Code.

App. 2

discretion to order him visitation as an interested

party. He also argues California’s statutory scheme is

unconstitutional, violating the principles of due process and equal protection. Lastly, he claims the trial

court’s decision on the matter may have been the result

of bias. For the reasons set forth below, we affirm.

BACKGROUND

1. Statement of Facts

a. Daughter’s Birth

In 2002, S.T. married Martin and had their son

Frank. In 2006, S.T. and Martin separated for approximately 18 months. During their separation, they did

not live together. S.T. filed for divorce from Martin in

2006. She met W.S. sometime in 2007 or 2008 while

working at a car dealership. The two began a relationship. At the time, W.S. believed S.T. was divorced and

lived with her mother.

In 2008, S.T. became pregnant with daughter. By

that time, S.T. said she had reconciled with Martin and

was living with him. She told W.S. he was not daughter’s father, and W.S. did not press her for details. During S.T.’s pregnancy, Martin attended prenatal classes

with her. He drove her to the hospital when she was in

labor and took several weeks off work so he could help

afterwards. Martin was in the room during daughter’s

birth and cut her umbilical cord. His name was put on

daughter’s birth certificate. According to Martin, S.T.

breastfed daughter when she was a baby, and daughter

would wake up every two hours. Martin helped S.T.

App. 3

take care of daughter. He changed daughter’s diaper,

washed her laundry, and rocked her to sleep. When

daughter started drinking formula, Martin would prepare bottles for her. Daughter slept with S.T. and Martin in their bed until she was approximately four and

a half years old.

Shortly after daughter’s birth, S.T. suspected W.S.

was daughter’s father based on her features. Her suspicions were confirmed by a DNA test.2 Martin remained unaware that daughter was not his biological

daughter.

S.T. believed W.S. first saw daughter several weeks

after she was born. The visit was brief, lasting only several minutes. W.S. lived with his mother at the time,

and he did not initially tell his mother that daughter

was his daughter.

b. W.S.’s Account of His Relationship with

Daughter

W.S., S.T., and Martin provided conflicting accounts of W.S.’s relationship with daughter. Between

2009 and 2010, W.S. said he saw daughter almost every

day, and she spent the night at his apartment approximately once or twice a week. Daughter would often

stay overnight by herself, because S.T. had to be at

home to take care of Frank. W.S. believed S.T. and

daughter lived with S.T.’s mother.

2

W.S. and S.T. used a DNA testing kit purchased at a drugstore. The blood DNA test was not court-ordered.

App. 4

Daughter did not have her own room at W.S.’s

apartment, which he shared with his mother. W.S. said

his apartment was full of daughter’s toys and artwork.

He had purchased a crib for daughter, but she did not

use it. Daughter slept in W.S.’s bed if she spent the

night. W.S. made bottles for her if she woke up by putting a scoop of formula in a bottle with warm water.

Daughter started eating solid foods between six and

nine months. W.S. said S.T. would cut up cooked pieces

of vegetables, like broccoli, to feed to daughter.

According to W.S., S.T. began limiting the amount

of time daughter spent at his apartment as she got

older and began attending daycare.3 W.S. did not participate in activities at daycare, because S.T.’s mother

knew people at the school. W.S. did not want to cause

embarrassment for S.T., daughter, or Frank if people at

the daycare found out that Martin was not daughter’s

father. Daughter did not spend the night at his apartment as often after she started daycare.

In 2013, daughter began attending preschool. She

was enrolled using W.S.’s last name. W.S. paid for

daughter’s tuition for approximately a year, and he frequently picked her up at the preschool. Daughter’s

teacher at preschool confirmed that W.S. and S.T. often

picked daughter up at school together. Daughter would

run to W.S. when he came to get her. W.S. participated

in school activities and parent-teacher conferences.

The teacher recalled that daughter called W.S. “Pa” or

3

W.S.’s friend testified at the hearing that he saw daughter

at W.S.’s home only five or six times.

App. 5

“Daddy.” Daughter’s teacher believed W.S. and S.T.

were a couple in a “[n]ormal relationship.” She could

not recall seeing Martin at the school.

W.S. held birthday parties for daughter when she

turned three, four, and five. W.S. and S.T. took daughter

on trips, including a trip to Six Flags for her birthday.

Daughter made drawings for W.S., including a drawing

with a heart and the word “Pa.” W.S. said the photo

symbolized “Pa’s heart.” W.S. posted daughter’s artwork around his apartment. He celebrated Valentine’s

Day, Christmas, Thanksgiving, and Halloween with

daughter. W.S. had many nicknames for daughter.

W.S. did not know the name of daughter’s dentist

or doctor. He had never attended daughter’s medical

appointments, and daughter was not on his health insurance. However, he did pay for S.T.’s cell phone bill.

He also occasionally gave S.T. money.

c. S.T.’s Account of W.S.’s Relationship with

Daughter

According to S.T., W.S. exaggerated the closeness

of his relationship with daughter. S.T. brought daughter to visit W.S. approximately once or twice a week

during her first year.4 However, she described daughter’s typical visits with W.S. as brief. S.T. allowed

daughter to stay overnight at W.S.’s home only once

when she was an infant. S.T. found being separated

4

A friend who coordinated pickups with S.T. confirmed that

she picked daughter up at W.S.’s home once or twice a week.

App. 6

from daughter too painful to allow more overnight visits.

S.T. refuted W.S.’s claims about daughter’s feeding.

S.T. said daughter was breastfed for the first few

months. S.T. insisted she would not have permitted

daughter to drink bottles made with warm water that

was not boiled first, as described by W.S. She also explained that daughter started eating solid foods between one and two years of age, not between six and

nine months. Daughter began eating purees, not diced

vegetables.

When daughter started daycare, S.T. would occasionally take her to visit W.S. The visits were short,

lasting maybe one or two hours. Daughter spent weekends at home with S.T., Martin, and Frank. When

daughter was enrolled at preschool, S.T. allowed W.S.

to pay for half of daughter’s tuition. S.T. deposited

money into W.S.’s bank account to pay for the other

half of the tuition. She acknowledged that W.S. frequently went with her to pick up and drop off daughter

at the school. Occasionally, daughter went to W.S.’s

apartment to play after preschool ended.

S.T. could only remember daughter staying overnight at W.S.’s apartment a total of three or four times.

W.S., however, had text messages that seemed to indicate daughter stayed overnight with him at least 10 or

more times. When questioned about the messages, S.T.

said she could not recall sending the messages and

could not remember daughter spending the night so

frequently. S.T. described her relationship with W.S. as

App. 7

“verbally abusive.” She also claimed she was often present when daughter visited W.S. W.S. would hide

daughter’s toys when she was not there, because not

all of his relatives knew daughter was his daughter.

On daughter’s birthdays, S.T. would take daughter

to W.S.’s house in the morning. She also brought

daughter to W.S.’s house if he had presents for her on

Christmas. On Halloween, she would bring daughter

over for trick or treating. S.T. acknowledged she had

gone on trips with daughter, W.S., and W.S.’s mother.

They had visited the Jelly Belly factory for daughter’s

second birthday. S.T., W.S., and daughter had also gone

to Six Flags for daughter’s fourth birthday.

d. Martin’s Relationship with Daughter

Martin could only recall a few occasions where

daughter was not home at night. He did not believe

daughter could have spent so many nights at W.S.’s

apartment, because he would have noticed she was not

at home. Martin described that as daughter got older,

he continued to be very involved in her life. He cleaned

up for her, cooked for her, and used to pick her up at

daycare. When it was time for daughter to sleep, Martin would put her to bed by either reading to her or

putting on a movie.

Martin could not recall the name of daughter’s

preschool. He did not pick her up or drop her off at preschool and did not participate in any of the school activities. He believed S.T. was the one paying for the

preschool.

App. 8

Daughter was on Martin’s health insurance. Martin scheduled daughter’s dentist appointments and

knew the name of daughter’s doctor. Martin did not attend her appointments.

e. End of W.S. and S.T.’s Relationship

S.T. described her relationship with W.S. as tumultuous. She said they “ended” their relationship numerous times throughout the years. In July 2014, S.T. told

Martin about her relationship with W.S. Martin was

upset and initiated divorce proceedings. However, by

the time W.S. filed his petition to establish a parental

relationship, Martin and S.T. were in the process of reconciling. Martin and S.T. said they were working on

their marriage and were not proceeding further with

the divorce.

2. Petition to Establish Parental Relationship

On August 22, 2014, W.S. filed a petition to establish a parental relationship with daughter. W.S. alleged

he was daughter’s biological father and requested joint

legal and physical custody and equal visitation. W.S.

also requested daughter’s last name be changed.

On August 25, 2014, S.T. filed a response asserting

that daughter was not W.S.’s daughter. S.T. declared

that she had a relationship with W.S. before she became pregnant with daughter. Daughter, however, was

born during her marriage to Martin while they were

living together. Thus, Martin was daughter’s father. On

App. 9

August 26, 2014, Martin moved for joinder. Martin argued that he was a necessary party to the action, since

there was a conclusive presumption he was daughter’s

father under section 7540.

Before the hearing, all parties submitted briefs, arguments, and evidence for the trial court to consider.

W.S. argued the presumption of paternity under section 7540 should not apply to Martin, because S.T. had

filed for divorce from Martin in 2006. Thus, he claimed

that S.T. and Martin were not cohabitating at the time

daughter was conceived. W.S., however, conceded that

even if Martin was not a conclusive father under section 7540, he met the requirements of a presumed father under section 7611. W.S. argued he also met the

requirements of a presumed father under section 7611.

He then argued his presumption of fatherhood should

prevail over Martin’s presumption under section 7612,

subdivision (b), which provides that when two competing presumptions for paternity exists [sic] the presumption upon “which on the facts is founded on the

weightier considerations of policy and logic controls.”

S.T. filed a declaration asserting that she was cohabitating with Martin at the time daughter was conceived. She also filed a brief claiming the marital

presumption of paternity under section 7540 has precedence over the presumption set forth under section

7611.

App. 10

3. The Hearing and Trial

On October 21, 2014, the trial court held a hearing

and found there was a conclusive presumption that

Martin was daughter’s father, because he was married

to and cohabitating with S.T. when daughter was conceived pursuant to section 7540. Thereafter, it found

Martin was a necessary party to the action and

granted his motion for joinder. Subsequently, the trial

court continued the hearing, focusing on whether W.S.

was presumptively daughter’s father under section

7611.5

The court heard testimony from W.S., S.T., Martin,

and several family members and friends. After hearing

argument from the parties, the court took the matter

under submission. On March 19, 2015, the trial court

issued a written statement of decision denying W.S.’s

request for visitation and joint legal and physical custody of daughter. The trial court concluded W.S. had not

received daughter into his home, because he had not

satisfied the standard of “ ‘regular visitation,’ ” which

included “assumption of parent-type obligations and

duties. . . . ” Thus, he could not qualify as a presumed

parent within the meaning of section 7611, subdivision

(d).

5

The first day of the trial was held on October 21, 2014. The

trial continued on to December 9 and 15, 2014.

App. 11

DISCUSSION

On appeal, W.S. argues the trial court erred when

it denied his request to establish a parental relationship. He argues (1) the trial court applied an incorrect

legal standard to determine if he received daughter

into his home under section 7611, subdivision (d), (2)

the trial court erred when it failed to grant him visitation with daughter, (3) the trial court’s decision erroneously considered the timeliness of his petition when

there is no statute of limitations to bring an action to

establish a parental relationship, (4) California’s statutory scheme is unconstitutional, because it deprives

him of due process and explicitly prefers mothers over

fathers and requires fathers to take affirmative steps

before recognizing their equal right to custody, and (5)

a reasonable person may entertain doubts as to

whether the trial court’s decision on his petition was

the result of bias. For the reasons set forth below, we

affirm.

1. Receipt into the Home

On appeal, W.S. argues the trial court misinterpreted the receiving requirement set forth under section 7611, subdivision (d). Section 7611, subdivision (d)

provides that a person is a presumed parent if he or

she “receives the child into his or her home and openly

holds out the child as his or her natural child.”6 The

6

The parties did not dispute that W.S. held daughter out as

his own child. They only disputed whether W.S. received

App. 12

statute does not expressly define what actions constitute receiving a child into a home. In its statement of

decision, the trial court expressed the view that receiving daughter into his home required W.S. to prove regular visitation and the assumption of parent-type

obligations and duties such as feeding, bathing, putting daughter to bed, changing her clothes, disciplining

her, and other similar tasks. W.S. argues section 7611,

subdivision (d) only required him to physically take

daughter inside his home, and the trial court’s additional requirements were superfluous and not within

the meaning of the statute. As we explain below, we reject W.S.’s claim.

a. Overview and Standard of Review

W.S. questions the trial court’s interpretation of

section 7611, subdivision (d). The interpretation of a

statute is a question of law, which we review de novo.

(People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24

Cal.4th 415, 432.)

When construing a statute, we ascertain the Legislature’s intent in order to carry out the purpose of the

law. (Cummins, Inc. v. Superior Court (2005) 36

Cal.4th 478, 487.) We first examine the language of the

statute. If the language is not ambiguous, “we presume

the Legislature meant what it said, and the plain

meaning of the statute governs.” (Hunt v. Superior

Court (1999) 21 Cal.4th 984, 1000.) However, “if the

daughter into his home within the meaning of section 7611, subdivision (d).

App. 13

statutory language permits more than one reasonable

interpretation, courts may consider various extrinsic

aids, including the purpose of the statute, the evils to

be remedied, the legislative history, public policy, and

the statutory scheme encompassing the statute. [Citation.] In the end, we ‘ “must select the construction that

comports most closely with the apparent intent of the

Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid

an interpretation that would lead to absurd consequences.” ’ ” (Torres v. Parkhouse Tire Service, Inc.

(2001) 26 Cal.4th 995, 1003.)

b. “Receiving” Requirement

W.S. argues the receiving requirement set forth

under section 7611, subdivision (d) is satisfied by a

parent physically taking a child into his or her home.

Thus, he argues the trial court erred when it concluded

he did not receive daughter into his home. For the reasons set forth below, we disagree.

The Uniform Parentage Act (§ 7600 et seq.) (UPA)

distinguishes presumed fathers from biological and alleged fathers. (In re J.L. (2008) 159 Cal.App.4th 1010,

1018.) Biology is not determinative of presumed fatherhood. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209

(T.R.).) Mothers and presumed fathers have far greater

rights. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 824

(Kelsey S.).) A father is not elevated to presumed father

status unless he has demonstrated a “commitment to

the child and the child’s welfare . . . regardless of

App. 14

whether he is biologically the father.” (T.R., supra, at

p. 1212.)

Section 7611 sets forth several rebuttable presumptions of paternity. “ ‘The statutory purpose [of section 7611] is to distinguish between those fathers who

have entered into some familial relationship with the

mother and child and those who have not.’ ” (T.R., supra, 132 Cal.App.4th at p. 1209.) Section 7611, subdivision (d) creates a rebuttable presumption of

presumed fatherhood if “[t]he presumed parent receives the child into his or her home and openly holds

out the child as his or her natural child.”

Section 7611, subdivision (d) does not provide an

express definition of what constitutes receipt of a child

into a parent’s home. However, several courts have analyzed the roots of the “receiving” element. In Charisma R. v. Kristina S. (2009) 175 Cal.App.4th 361, 369

(Charisma R.), disapproved on another point in Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 532, the court noted

“receives” as used in section 7611, subdivision (d),

came from former Civil Code section 230, which predated the UPA and codified the concept of legitimacy.

(Charisma R., supra, at p. 371.) At that time, former

Civil Code section 230 provided: “The father of an illegitimate child, by publicly acknowledging it as his own,

receiving it as such, with the consent of his wife, if he

is married, into his family, and otherwise treating it as

if it were a legitimate child, thereby adopts it as such;

and such child is thereupon deemed for all purposes

legitimate from the time of its birth.” (Former Civ.

Code, § 230, repealed by Stats. 1975, ch. 1244, § 8, p.

App. 15

3196.) In 1975, the Legislature enacted the UPA, which

abolished the concept of legitimacy or illegitimacy and

replaced it with the concept of parentage. (Kelsey S.,

supra, 1 Cal.4th at p. 828.) Former Civil Code section

230 was replaced by section 7611, subdivision (d). (Kelsey S., supra, at pp. 827-828; Charisma R., supra, at p.

371.)

Prior to the enactment of the UPA, courts liberally

interpreted what constituted “receipt” into the home.

(In re Richard M. (1975) 14 Cal.3d 783, 794.) In Richard M., the Supreme Court concluded “[the] requirement [was] satisfied by evidence that the father

accepted the child as his own, usually demonstrated by

an actual physical acceptance of the child into the father’s home to the extent possible under the particular

circumstances of the case. Thus the father receive[d]

the child into his family when he temporarily reside[d]

with the mother and child, even for a brief period.”

(Ibid.) “The statutory receipt requirement [was] also

fulfilled by the father’s acceptance of the child into his

home for occasional temporary visits.” (Id. at p. 795.)

Additionally, in Estate of Peterson (1963) 214

Cal.App.2d 258, the court found the father received the

daughter into his home when she visited briefly once

and spent two weekends at the home of the father and

his wife. (Id. at pp. 263-264.)

W.S. correctly asserts that there is no requirement

that a child live with a parent for the parent to achieve

presumed parent status. (See In re A.A. (2003) 114

Cal.App.4th 771, 784 (A.A.) [finding presumed father

status when child never lived with presumed father].)

App. 16

W.S., however, broadly interprets section 7611, subdivision (d) to require only that daughter was physically

present inside his home. W.S. relies on cases like Richard M. and Peterson and their liberal interpretation of

the receiving requirement to support this claim. However, a review of cases analyzing the receiving requirement post-UPA compels us to reject his argument.

“Section 7611, subdivision (d) . . . requires something

more than a man’s being the mother’s casual friend or

long-term boyfriend; he must be ‘someone who has entered into a familial relationship with the child: someone who has demonstrated an abiding commitment to

the child and the child’s well-being’ regardless of his

relationship with the mother.” (In re D.M. (2012) 210

Cal.App.4th 541, 553.) In other words, the child’s physical presence within the alleged father’s home is, by itself, insufficient under section 7611, subdivision (d).

In Kelsey S., our Supreme Court acknowledged

that historically under cases like Richard M., there

was a liberal interpretation of the receiving requirement, and even constructive receipt was potentially

sufficient. (Kelsey S., supra, 1 Cal.4th at p. 828.) However, cases pre-dating the UPA like Richard M. were

decided in a much different statutory context. When

Richard M. was decided, “the determination was

whether the child had been legitimated by the father.”

(Ibid., italics added.) There was stigma and unfavorable legal treatment attached to a classification of a

child as illegitimate. (Ibid.) An illegitimate child had

no legal father. In contrast, after the enactment of the

UPA and the replacement of the concept of legitimacy

App. 17

with parentage, children will end up with a father,

whether it be a biological father that is granted presumed father status or an adoptive father. (Id. at pp.

828-829.) Thus, Kelsey S. held that the child must be

physically received into the home, and constructive receipt is insufficient. (Id. at pp. 826-830.)

Following Kelsey S., courts have found that the receiving requirement was met if the “receipt of the child

into the home [was] sufficiently unambiguous as to

constitute a clear declaration regarding the nature of

the relationship. . . .” (Charisma R., supra, 175

Cal.App.4th at p. 374.) A father does not need to receive the child into his home for a specific period of

time, although cohabitation for an extended period of

time may strengthen a claim for presumed parent status. (Ibid.) However, to receive a child into his or her

home, a parent must “demonstrate a parental relationship, however imperfect.” (Jason P. v. Danielle S.

(2017) 9 Cal.App.5th 1000, 1023 (Jason P.).) “Presumed parent status is afforded only to a person with

a fully developed parental relationship with the child.”

(R.M. v. T.A. (2015) 233 Cal.App.4th 760, 776.)

There are no specific factors that a trial court must

consider before it determines that a parent has “received” a child into the home and has established a parental relationship. “In determining whether a man

has ‘receiv[ed a] child into his home and openly h[eld]

out the child’ as his own [citation], courts have looked

to such factors as whether the man actively helped the

mother in prenatal care; whether he paid pregnancy

and birth expenses commensurate with his ability to

App. 18

do so; whether he promptly took legal action to obtain

custody of the child; whether he sought to have his

name placed on the birth certificate; whether and how

long he cared for the child; whether there is unequivocal evidence that he had acknowledged the child; the

number of people to whom he had acknowledged the

child; whether he provided for the child after it no

longer resided with him; whether, if the child needed

public benefits, he had pursued completion of the requisite paperwork; and whether his care was merely incidental.” (T.R., supra, 132 Cal.App.4th at p. 1211.)

In Charisma R., the appellate court found substantial evidence supported the presumed parent finding when the parent attended the birth of the child,

shared parenting responsibilities for the first six

weeks of the child’s life, cared for the child full time for

the following seven weeks, and held herself out as the

child’s mother in various ways. (Charisma R., supra,

175 Cal.App.4th at pp. 374-375.)

In Jason P., the appellate court upheld the trial

court’s conclusion that the father had sufficiently “received” his son at his apartment in New York, noting

that the child spent time at the father’s apartment in

New York, the father made arrangements with his assistant to accommodate the child while he was there,

he took the child to the park when he was not working,

he fed, played music for, and read to the child, he arranged for an allergist to see the child, he obtained a

baby gate for the child to prevent him from falling

down the stairs in his apartment, and he gave the child

his own room in the apartment. (Jason P., supra, 9

App. 19

Cal.App.5th at p. 1022.) These acts “unambiguously

demonstrated a parental relationship” between father

and child during his visits to his father’s New York

apartment. (Id. at p. 1023.)

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

appellate court held there was substantial evidence

that a mother in a same-sex relationship had received

their children into her home. (Id. at p. 1032.) While in

a relationship with her former partner, the mother

maintained a separate residence but regularly spent

three or four nights a week at her former partner’s

home and helped take care of their first child. She also

stopped by after work to see the child and assisted in

his care. (Ibid.) When the second child was born, the

mother was no longer in a relationship with her former

partner. However, she continued to go to her former

partner’s home on weekdays and weeknights to spend

time with and take care of both children. (Ibid.) When

the parties reconciled, the mother resumed spending

three or four nights a week at her former partner’s

home, assisting with the children’s care. (Ibid.)

In its statement of decision, the trial court relied

on A.A., supra, 114 Cal.App.4th 771. In A.A., the appellate court found there was insufficient evidence the

child was received into the respondent’s home within

the meaning of section 7611, subdivision (d). (A.A., supra, at pp. 786-787.) The respondent (biological father)

asserted he visited the child “ ‘on a fairly regular basis’ ” during the first year of her life and visited the

child every other weekend for the next three years. (Id.

at p. 786.) The visits did not take place in the

App. 20

respondent’s home. Absent an explanation for not having the visits take place in his home, the court concluded “such visitation can be seen as a matter of

convenience for respondent.” (Ibid.) Visiting the child

at other homes allowed the respondent to “avoid the

constant parental-type tasks that come with having

the child in his own home—such as feeding and cleaning up after the minor, changing her clothing, bathing

her, seeing to her naps, putting her to bed, taking her

for outings, playing games with her, disciplining her,

and otherwise focusing on the child.” (Id. at pp. 786787.) In fact, there was no indication of what the respondent did with the child during her visits. (Id. at p.

787.)

In contrast, the A.A. court found there was sufficient evidence the appellant (not the biological father)

met the requirements to achieve presumed father status under section 7611, subdivision (d). (A.A., supra,

114 Cal.App.4th at p. 784.) Although the child did not

live with appellant on a full-time basis, he was regularly involved with the child since her birth. (Ibid.) The

appellant also provided financial support for the child,

buying her clothes, toys and food, and other essentials.

(Ibid.)

The trial court also relied on In re Cheyenne B.

(2012) 203 Cal.App.4th 1361, 1369 (Cheyenne B.). In

Cheyenne B., the father was incarcerated when the

child was born and sporadically visited her several

times. (Ibid.) Sometimes he would meet her at a local

Wal-Mart when he drove through the town where she

lived. (Ibid.) The appellate court concluded substantial

App. 21

evidence supported the trial court’s determination that

the father’s visits with the child were too inconsistent

and irregular to satisfy the requirement that he received the child into his home. (Id. at p. 1380.)

Cheyenne B. characterized A.A. as requiring “regular visitation” in order to satisfy receipt under section

7611, subdivision (d). (Cheyenne B., supra, 203

Cal.App.4th at p. 1379.) The trial court referenced this

“ ‘regular visitation’ ” standard in its statement of decision, explaining that the receiving element could be

satisfied by showing “ ‘regular visitation,’ ” which included “assumption of parent-type obligations and duties. . . . ” This statement demonstrates the trial court

understood that to become a presumed parent, one

must show a parental, family-child relationship. (R.M.

v. T.A., supra, 233 Cal.App.4th at p. 776.) We find this

to be an accurate representation of the law. The common thread between the cases we have discussed is

that the parent seeking presumed parent status could

show the existence of a parent-child relationship based

on assuming parental responsibilities, demonstrating

commitment to the child, and providing support. That

is the standard the trial court applied in W.S.’s case.

W.S. argues that cases like A.A. and Cheyenne B.

limit their holdings to dependency proceedings. Principally, W.S. relies on In re Jerry P. (2002) 95 Cal.App.4th

793 (Jerry P.). The Jerry P. court explained that in dependency proceedings the purpose of section 7611, subdivision (d) is not to establish paternity but “to

determine whether the alleged father has demonstrated a sufficient commitment to his parental

App. 22

responsibilities to be afforded rights not afforded to

natural fathers—the rights to reunification services

and custody of the child.” (Jerry P., supra, at p. 804.)

Thus, Jerry P. held that in the dependency context, the

term “ ‘presumed father’ does not denote a presumption of fatherhood in the evidentiary sense and presumed father status is not rebutted by evidence

someone else is the natural father.” (Ibid.)

Nothing in Jerry P. suggests that we must interpret section 7611, subdivision (d) differently depending

upon whether it is applied in the dependency context

or in some other proceeding. As explained in Jerry P.,

the purpose served by determining presumed parent

status in a dependency proceeding is different than in

a proceeding to determine a parental relationship. In a

dependency proceeding, the presumed parent status

entitles one to services not available to a natural parent who has not attained that status. However, it

would make little sense to apply one definition of “receiving” as used in section 7611 to dependency actions

while applying another definition to all other proceedings. Section 7611 should be subject to only one interpretation, regardless of the type of action in which it is

used.

W.S. also argues the trial court impermissibly

evaluated him using the factors set forth in Kelsey S.,

supra, 1 Cal.4th 816. Under Kelsey S., certain fathers

may acquire the rights of a presumed father without

meeting the requirements of any of the statutory presumptions, including the presumption set forth under

section 7611. Under Kelsey S., “ ‘an unwed biological

App. 23

father who comes forward at the first opportunity to

assert his paternal rights after learning of his child’s

existence, but has been prevented from becoming a

statutorily presumed father under section 7611 by the

unilateral conduct of the child’s mother or a third

party’s interference’ acquires a status ‘equivalent to

presumed parent status under section 7611.’ ” (In re

D.A. (2012) 204 Cal.App.4th 811, 824.) Kelsey S. held

that a father who promptly steps forward and assumes

parental responsibilities cannot have his parental

rights terminated absent a showing of his unfitness as

a parent even if he does not meet the statutory requirements of section 7611. (Kelsey S., supra, at p. 849.)

There is some overlap in the factors used to determine whether a man is a presumed father under section 7611 and whether he is a father within the

meaning of Kelsey S. (See In re Elijah V. (2005) 127

Cal.App.4th 576, 582.) The trial court’s consideration

of certain factors that are also relevant to the Kelsey S.

analysis does not demonstrate a misunderstanding of

the receiving element under section 7611. As we have

explained, a father “receives” the child into his home if

he unambiguously demonstrates a parental relationship. (Charisma R., supra, 175 Cal.App.4th at p. 374;

Jason P., supra, 9 Cal.App.5th at p. 1023.) Demonstrating a parental relationship requires W.S. prove more

than the fact that daughter has been inside his home.

Thus, the trial court correctly considered whether W.S.

App. 24

assumed parental responsibilities and took on the role

of a parent in daughter’s life.7

2. Visitation Rights

Next, W.S. argues that as daughter’s biological father, he has a right to visitation under section 3100. He

insists the provision regarding visitation found in section 3100 operates notwithstanding his failure to

achieve status as a presumed parent. Alternatively, he

claims that even if he was not a presumed parent, the

court had the discretion to grant visitation rights to

nonparents, and it failed to exercise this discretion.

First, we find that section 3100 is inapplicable in

the context of this case. Section 3100, subdivision (a)

begins by specifying that it applies when the court

makes “an order pursuant to Chapter 4 (commencing

with Section 3080)” of the Family Code, which discusses joint custody orders. (§ 3100, subd. (a).) Here,

W.S. requested joint custody of daughter. However,

since he failed to establish parentage under the UPA,

the court did not make any joint custody orders. Thus,

it did not make “an order pursuant to Chapter 4” of the

Family Code, and section 3100’s provisions providing

for visitation (both for parents and for interested

7

In addition to addressing W.S.’s arguments, S.T. argues in

her respondent’s brief that sufficient evidence supported the trial

court’s conclusion that W.S. did not achieve presumed parent status. We decline to address this argument. W.S. did not raise this

claim in his opening brief. Issues not raised in the appellant’s

opening brief are deemed waived or abandoned. (Aptos Council v.

County of Santa Cruz (2017) 10 Cal.App.5th 266, 296, fn. 7.)

App. 25

parties) are inapplicable here. (See Ed H. v. Ashley C.

(2017) 14 Cal.App.5th 899, 912 [“section 3100 applies

only when a joint custody order is involved”].) Accordingly, the trial court did not err when it did not order

visitation for W.S., either as a parent or as an interested non-parent.

Second, W.S.’s argument that section 3100’s provision providing for parental visitation applies to him

fails as a matter of law. W.S. argues that a “parent” under section 3100 is not limited to presumptive parents

as defined under the UPA. W.S.’s claim is a question of

law that we review de novo. (People ex rel. Lockyer v.

Shamrock Foods Co., supra, 24 Cal.4th at p. 432.)

“Division 8, part 2 of the Family Code governs the

right to custody of a minor child. Part 2 applies not only

to dissolution, nullity and legal separation proceedings

and actions for exclusive custody, but also to proceedings to determine custody or visitation in actions

brought under the . . . UPA. (§ 3021, added by Stats.

1993, ch. 219, § 116.11.) The Law Revision Commission

comments to this section are particularly pertinent:

‘This section expands the application of this part to

proceedings in which custody or visitation is determined in an action pursuant to . . . the [UPA]. . . .’ ”

(Barkaloff v. Woodward (1996) 47 Cal.App.4th 393,

397-398.) Section 3100, subdivision (a), which is found

in division 8, part 2 of the Family Code, provides in

pertinent part: “In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall

grant reasonable visitation rights to a parent unless it

App. 26

is shown that the visitation would be detrimental to

the best interest of the child.”

Section 3100 does not expressly define the term

“parent.” W.S., however, brought an action under the

UPA to determine the existence of a parental relationship. The UPA determines parentage—the “parent and

child relationship”—as “the legal relationship existing

between a child and the child’s natural or adoptive parents. . . . The term includes the mother and child relationship and the father and child relationship.”

(§ 7601, subd. (b), italics added.) The UPA further provides that the “parent and child relationship may be

established as follows: (a) Between a child and the natural parent, it may be established by proof of having

given birth to the child, or under this part.” (§ 7610,

subd. (a), italics added.) This “part” includes section

7611. As we have previously discussed, section 7611,

subdivision (d) provides that a person is a presumed

parent if he or she “receives the child into his or her

home and openly holds out the child as his or her natural child.”

Thus, one way for W.S. to establish he is a natural

parent under the UPA is to prove he meets the statutory elements of the presumption set forth under section 7611, subdivision (d). Here the trial court found

W.S. did not meet the elements of the presumption. In

other words, although W.S. is daughter’s biological father, he is not a “natural parent” as defined under the

UPA. Therefore, he does not have a parent-child relationship with daughter, and the trial court did not err

App. 27

by declining to award him visitation under section

3100 as a “parent.”

Lastly, we find W.S.’s reliance on Camacho v.

Camacho (1985) 173 Cal.App.3d 214 to be unavailing.

He argues Camacho held that a biological father has a

right to visitation. Camacho does not aid W.S. The father in Camacho filed a suit to establish paternity and

obtain visitation, and the trial court adjudicated him

the child’s natural father. (Id. at p. 217.) Unlike the father in Camacho, W.S. was unsuccessful in establishing parentage.

3. Constitutionality of the Statutory Scheme

W.S. raises several constitutional challenges to the

statutory scheme of the UPA and the Family Code. He

argues he has a liberty interest, protected as a matter

of substantive due process, in his relationship with

daughter. He also argues section 3010 violates equal

protection principles, because it automatically grants

custody to biological mothers while requiring fathers

to establish “presumed” parenthood under section

7611. He argues California law further divides fathers

into various subclasses based on their marital status,

readily

granting

married

fathers

presumed

parenthood status while requiring unmarried fathers

to additionally prove receipt of the child into the home

and acknowledgement of the child as his own.

Preliminarily, we find W.S.’s constitutional arguments are waived for failure to raise them to the trial

court. “ ‘ “Typically, constitutional issues not raised in

App. 28

earlier civil proceedings are waived on appeal.” ’ ” (Neil

S. v. Mary L. (2011) 199 Cal.App.4th 240, 254 (Neil S.).)

W.S. did not discuss these constitutional issues in either his trial brief or his original petition to establish

a parental relationship.

Furthermore, even if we were to consider W.S.’s arguments as pure questions of law presented by undisputed facts, we would reject them. First, we find Kelsey

S., supra, 1 Cal.4th 816 instructive on whether W.S.

had a protected liberty interest in establishing a parental relationship with daughter and whether his

rights were entitled to equal protection as to a

mother’s rights. The Kelsey S. court construed former

section 7004, which has since been renumbered to section 7611. The court noted that an unwed father has a

constitutional due process right to establish a parental

relationship with his child only if he “promptly comes

forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise. . . .” (Kelsey S., supra, at p. 849.)

“A court should consider all factors relevant to

that determination. The father’s conduct both before

and after the child’s birth must be considered. Once the

father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow

and his circumstances permit. In particular, the father

must demonstrate ‘a willingness himself to assume full

custody of the child—not merely to block adoption by

others.’ [Citation.] A court should also consider the father’s public acknowledgment of paternity, payment of

App. 29

pregnancy and birth expenses commensurate with his

ability to do so, and prompt legal action to seek custody

of the child.”8 (Kelsey S., supra, 1 Cal.4th at p. 849, fn.

omitted.) Thus, the statutory presumption set forth in

section 7611 violates due process and equal protection

principles only if it is applied to an “unwed father who

has sufficiently and timely demonstrated a full commitment to his parental responsibilities.” (Kelsey S.,

supra, at p. 849.) “Absent such a showing, the child’s

well-being is presumptively best served by continuation of the father’s parental relationship. Similarly,

when the father has come forward to grasp his parental responsibilities, his parental rights are entitled to

equal protection as those of the mother.” (In re Ariel H.

(1999) 73 Cal.App.4th 70, 73.)

Here the trial court expressly found that W.S. did

not take prompt legal action to obtain custody, did not

assist S.T. in prenatal care or pay for birth expenses,

was not involved in daughter’s healthcare, and did not

give daughter parental-type care when she visited. In

short, W.S. did not demonstrate a full commitment to

his parental responsibilities. Absent such a demonstrated commitment, W.S. did not have a protected liberty interest in establishing a parental relationship

with daughter and his parental rights were not entitled to equal protection as to those of a mother. (Kelsey

8

We briefly discussed the Kelsey S. factors earlier in our

opinion, when we evaluated W.S.’s claim that he qualified as a

presumed parent under section 7611.

App. 30

S., supra, 1 Cal.4th at pp. 849-850; In re Ariel H., supra,

73 Cal.App.4th at pp. 72-74.)

Second, W.S.’s claim that the statute unconstitutionally prefers married fathers over unmarried fathers in violation of equal protection principles is

undeveloped on appeal. “ ‘ “The first prerequisite to a

meritorious claim under the equal protection clause is

a showing that the state has adopted a classification

that affects two or more similarly situated groups in

an unequal manner.” ’ ” (Walgreen Co. v. City and

County of San Francisco (2010) 185 Cal.App.4th 424,

434.) “There is no constitutional requirement of uniform treatment. [Citations.] Legislative classification

is permissible when made for a lawful state purpose

and when the classification bears a rational relationship to that purpose. [Citations.] ‘Wide discretion is

vested in the Legislature in making the classification

and every presumption is in favor of the validity of the

statute; the decision of the Legislature as to what is a

sufficient distinction to warrant the classification will

not be overthrown by the courts unless it is palpably

arbitrary. . . .’ ” (Estate of Horman (1971) 5 Cal.3d 62,

75.) “When legislation involves a suspect classification

such as classifications based on race, nationality or alienage, or the disparate treatment has a real and appreciable impact on a fundamental interest or right, a

heightened standard of scrutiny is applied. [Citations.]

In such cases, legislation will be upheld only if it is

shown the state ‘ “has a compelling interest [that] justifies the law” ’ and ‘ “that distinctions drawn by the

App. 31

law are necessary to further its purpose.” ’ ” (Neil S., supra, 199 Cal.App.4th at p. 254.)

In his opening brief, W.S. does not explain how or

why unmarried fathers and married fathers are similarly situated to each other. Nor does he explain or

make arguments pertaining to what level of scrutiny

should apply if the two groups are similarly situated to

each other. Having failed to support his conclusory

equal protection claim with reasoned legal analysis

and citations to the law, we consider it waived. (Benach

v. County of Los Angeles (2007) 149 Cal.App.4th 836,

852.)

4. Timeliness of W.S.’s Request to Establish a Parental Relationship

W.S. argues the trial court erred when it determined his petition to establish a paternal relationship

was untimely. He argues the trial court’s statement of

decision is replete with references to his failure to take

earlier legal action to establish his parental rights,

which it should not have taken into consideration.

W.S. is correct that there is no statute of limitations for requesting custody or visitation of one’s child.

Under section 7630, subdivision (b), “[a]ny interested

party may bring an action at any time for the purpose

of determining the existence or nonexistence of the

parent and child relationship presumed under subdivision (d) or (f ) of section 7611.”

App. 32

W.S., however, is incorrect that the trial court

found his request to be untimely. At no point did the

trial court indicate in its statement of decision that it

believed W.S.’s petition was barred by the statute of

limitations. Rather, the trial court referenced the timeliness of his petition when it examined whether W.S.

promptly stepped forward and assumed parental responsibilities, a factor it properly considered when considering if he achieved presumed parent status.9 (T.R.,

supra, 132 Cal.App.4th at p. 1211 [whether father

promptly took legal action to obtain custody of child is

a factor courts have considered when determining

whether father received child into home].) The court’s

statements about W.S.’s timeliness did not demonstrate a misunderstanding of the law.

5. Bias

Lastly, W.S. argues the trial court’s ruling on his

petition raises doubts as to whether its decision was

the product of bias. He argues bias can be inferred, because the trial court found S.T. to be credible despite

her lack of candor during her testimony, in her trial

briefs, and in her pleadings.

W.S.’s argument has no merit. “A party has the

right to an objective decision maker and to a decision

maker who appears to be fair and impartial.” (Wechsler

v. Superior Court (2014) 224 Cal.App.4th 384, 390.) As

9

It is also a factor that is properly considered when determining if W.S. had a protected due process right to establish a

relationship with daughter, as we previously discussed.

App. 33

the trier of fact, the trial court must evaluate the credibility of witnesses and make determinations when

conflicting evidence is presented. The trial court’s “reliance on certain witnesses and rejection of others cannot be evidence of bias no matter how consistently the

[trial court] rejects or doubts the testimony produced

by one of the adversaries. . . . ‘total rejection of an opposed view cannot by itself impugn the integrity or

competence of a trier of fact.’ ” (Andrews v. Agricultural

Labor Relations Bd. (1981) 28 Cal.3d 781, 796.) We

cannot find prejudice merely because the trial court

found some witnesses, such as S.T., to be credible.

DISPOSITION

The order is affirmed. S.T. is entitled to her costs

on appeal.

_______________________________

Premo, Acting P.J.

WE CONCUR:

_____________________________

Bamattre-Manoukian, J.

_____________________________

Grover, J.

App. 34

Trial Court:

Trial Judge:

Santa Clara County Superior

Court Superior Court No. 114-CP021742

Hon. Drew. C. Takaichi

Counsel for Appellant: Walzer Melcher

W.S.

Edward M. Lyman

Counsel for

Respondent: S.T.

W.S. v. S.T.

H042611

Dominion Law Group

Kevin S. Hutchinson

App. 35

ATTORNEY OR PARTY WITHOUT AT-

ONLY

TORNEY (Name, State Bar num-

ber, and address:)

FILED

Kevin Hutcheson 139890

2015 JUN – 9 A 9:28

Dominion Law Group, LLP

1155 N. 1st, #218

San Jose, CA 95112

TELEPHONE NO. (408) 288-5592

fax no.: (408) 938-1035

ATTORNEY FOR (Name):

Joined Party Martin Torres

SUPERIOR COURT OF

CALIFORNIA, COUNTY OF

Santa Clara

STREET ADDRESS: 170 Park

Center Plaza

MAILING ADDRESS: 191 N. 1st

CITY AND ZIP CODE: San Jose,

CA 95112

BRANCH NAME: Family

PETITIONER: Waleed Sai

RESPONDENT: Susana Torres

JUDGMENT

1.

CASE NUMBER:

1-14-CP-021742

⬜ This judgment ⬜ contains personal conduct

restraining orders ⬜ modifies existing restraining orders.

The restraining orders are contained in item(s):

of the attachment.

They expire on (date):

attached.

A CLETS form must be

App. 36

2.

a.

This matter proceeded as follows:

⬜ Default or uncontested ⬜ By declaration

☒ Contested

b.

Date: 10/21/14, 12/9/14, 12/15/14 Dept.: 73

Room:

c.

Judicial officer (name): Hon. Drew Takaichi

⬜ Temporary judge

d.

☒ Petitioner present ☒ Attorney present

(name): Shannon Stein

e.

☒ Respondent present ☒ Attorney present

(name): Jessica Huey

f.

Petitioner

(1) ⬜ The petitioner appeared without counsel and was advised of relevant rights.

(2) ⬜ The petitioner signed Advisement and

Waiver of Rights Re: Establishment of Parental Relationship (form FL-235).

(3) ⬜ The petitioner is married to the Respondent, and no other action is pending.

(4) ⬜ The petitioner signed a Voluntary Declaration of Paternity.

(5) ⬜ There is a prior judgment of parentage in a family support, juvenile, or adoption court case.

g.

Respondent

(1) ⬜ The respondent appeared without

counsel and was advised of relevant

rights.

App. 37

(2) ⬜ The respondent signed Advisement and

Waiver of Rights Re: Establishment of Parental Relationship (form FL-235).

(3) ⬜ The respondent is married to the Petitioner, and no other action is pending.

(4) ⬜ The respondent signed a Voluntary

Declaration of Paternity.

(5) ⬜ There is a prior judgment of parentage

in a family support, juvenile or adoption

court case.

h.

3.

Other parties or attorneys present (specify):

Joined Party Martin Torres with his attorney

Kevin Hutcheson

THE COURT FINDS

Name: Susana Torres ☒ Mother ⬜ Father

Name: Martin Torres ⬜ Mother ☒ Father

are the parents of the following children:

Child’s name

A. T.

4.

Date of Birth

X/X/2009

THE COURT ORDERS

a.

⬜ Child custody and visitation are as specified in one or more of the attached forms:

(1) ⬜ Child Custody and Visitation Order Attachment(form FL-341)

(2) ⬜ Stipulation for Order for Child

Custody and/or Visitation of Children (form FL-355)

(3) ⬜ Other (specify):

App. 38

5.

THE COURT FURTHER ORDERS

a.

⬜ Child support is as stated in one or more

of the attached:

(1) ⬜ Child Support Information and Order Attachment (form FL-342)

(2) ⬜ Stipulation to Establish or Modify

Child Support and Order (form FL350)

(3) ⬜ Other (specify):

b.

Both parties must complete and file with the

court a Child Support Case Registry Form

(form FL-191) within 10 days of the date of

this judgment. Thereafter, the parents must

notify the court of any change in the information submitted, within 10 days of the

change.

c.

The form Notice of Rights and Responsibilities-Health Care Costs and Reimbursement

Procedures and Information Sheet on Changing a Child Support Order (form FL-192) is

attached.

d.

⬜ The last names of the children are changed

to (specify):

e.

⬜ The birth certificates must be amended to

conform to this court order by

(1) ⬜ adding the father’s name.

App. 39

(2) ⬜ changing the last name of the children.

f.

⬜ Attorney fees and costs are as stated in

the attachment.

g.

⬜ Reasonable expenses of pregnancy and

birth are as stated in the attachment.

h.

☒ Other (specify):

Petitioner Waleed Sai is not a presumed parent of A. T. The basis for this finding is set

forth in the Statement of Decision filed

3/19/2015 a copy of which is attached for reference purposes.

⬜

6.

Continued on Attachment 3h.

Number of pages attached: 9

Date: 05.11.15

⬜

/s/ [Illegible]

JUDICIAL OFFICER

SIGNATURE FOLLOWS LAST ATTACHMENT

Judge Drew C. Takaichi

NOTICE: Any party required to pay child support

must pay interest on overdue amounts at the “legal”

rate, which is currently 10 percent.

App. 40

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

WALEED SAI,

Petitioner,

vs.

SUSANA TORRES,

Respondent,

and

MARTIN TORRES

Joined Party.

)

)

)

)

)

)

)

)

)

)

)

Case No.:

1-14-CP-021742

STATEMENT OF

DECISION

(Filed Mar. 19, 2015)

DEPT: 73

DATES: 10/21/2014;

12/9/2014; 12/15/2014

APJ: HONORABLE

DREW TAKAICHI

This matter was heard in Department 73 on October 21, 2014, December 9, 2014 and December 15, 2014.

Petitioner appeared personally and through his attorney, Shannon Stein, Respondent appeared personally

and through her attorney, Jessica L. Huey, and Joined

Party appeared personally and through his attorney,

Kevin Hutcheson. Evidence and argument were presented and the matter was submitted for decision.

Petitioner’s Request for Order filed August 28,

2014, requesting joint legal and joint physical custody

and an equal timeshare is denied.

The Court finds that Petitioner did not prove by a

preponderance of the evidence that he received the

child into his home within the meaning of Family Code

Section 7611(d), and accordingly, he is not a presumed

parent under Family Code Section 7611(d).

App. 41

The law and applicable findings of fact are as follows: Where the child has not lived in a party’s home,

as the case here, the requirement under Family Code

Section 7611(d) of receiving the child into the party’s

home may be met by an alternate means of sufficient

evidence of “regular visitation,” which is a standard defined in the appellate court rulings, In re A.A. (2003)

114 Cal. App. 4th 711 and In re Cheyenne B. (2012) 203

Cal. App/ 4th 1361. Although these cases pre-date a recent amendment of Family Code Section 7612, which

recognizes that a child may have more than two parents, the factors identified in those cases for determining presumed parent status are consistent with the

amended statutes and are valid authority and guidance on the issue.

It is clear that receiving the child into one’s home

is an element requiring more than consent, request, or

facilitation of the child into the party’s home by the

party seeking presumed parent status. Rather, that

element may be proven by regular visitation, which

decided cases define as an assumption of parent-type

obligations and duties such as feeding, bathing, putting the child to bed or naps, changing clothes, cleaning

up after the child, discipline and the like. Whenever

this Court in its ruling today refers to parental-type

task or duties, the court is referring specifically to

these stated responsibilities of care as more specifically set forth in the cited cases.

In both cases, the biological father’s involvement

with the child was held inadequate to meet the regular

visitation standard. The biological fathers in those

App. 42

cases were denied presumed parent status under the

code.

In the Sai and Torres case, the testimony provided

significant conflict concerning the facts of frequency,

extent, and nature of the Petitioner’s visits and relationship with the child, as well as the circumstances of

the biological parents’ relationship, Respondent’s living situation preceding and following the child’s birth

to the date of this hearing, and the extent and timing

of Petitioner’s knowledge of Joined Party – Respondent’s Husband’s relationship with the child and cohabitation with the Respondent and the Respondent’s two

children.

Today’s ruling reflects the Court’s findings on the

disputed facts following assessment of credibility and

bias of the witnesses and plausibility of each Party’s

version of what occurred.

The Court finds that the child never lived in Petitioner’s home, and from the totality of the credible evidence, including inferences drawn from the evidence,

finds that Petitioner failed to satisfy the alternative

means of proving receipt of the child into his home by

the regular visitation standard.

The Court further finds that Petitioner’s involvement with the child, though loving, as a biological

father, was visitation as a matter of convenience. Specifically, Petitioner’s involvement with the child included seeing the child in his home on the average of

two times per week for a relatively brief period of time

of one to three hours.

App. 43

The paternal grandmother lived with Petitioner

continuously since May 2009. The evidence indicated

that Respondent was present during most of the visits.

And when she was not present, paternal grandmother

was present. While the home contained art, toys, and

photos of the child, the child did not have a bedroom, a

crib, a bed, or a section of the home reserved for her.

Although father clearly enjoys his child’s presence and

would playfully engage with the child, the credible

evidence and inferences therefrom was that Respondent provided the parental-type of care during these

relatively short visits. And on the occasions where Respondent left the child at Petitioner’s home, the paternal grandmother provided the care.

Petitioner’s testimony that he provided parentaltype of care for the child was not credible as evidenced

from the specifics of his own testimony. This testimony

evidenced only a general understanding of child care

and lacked specific knowledge, substance, and detail of

feeding, bathing, and sleeping habits of this particular

child that he would have known if he had been responsible for these duties.

On the subject of the child’s spending overnights

at Petitioner’s home, Respondent underestimated and

Petitioner exaggerated the number of occasions. The

credible portion of the evidence indicated perhaps two

to ten occasions over a four-year period. It was simply

not plausible that there could have been any more in

light of the credible evidence that Respondent was living with her husband, Joined Party, during this period

App. 44

and that Joined Party would have known if the child

was absent.

Petitioner testified that the child spent many overnights at his home and he would take her to preschool

or childcare in the morning. Respondent testified she

would take the child to preschool and would meet Petitioner in the parking lot. Again, since the child’s enrollment occurred when Respondent and the child

were living with Joined Party, Petitioner’s testimony

that the child spent overnights at his home during this

period is not credible or plausible.

Notwithstanding, overnights of the child in the

home of the parent seeking presumptive parent status

is but one factor in the overall assessment of whether

or not a party has met the requirements of Family

Code section 7611(d).

Under the particular circumstances of this case,

two to ten overnights over a four year span of the

child’s life is very nominal. The court finds that Petitioner was aware of the living situation of Respondent,

child, and Joined Party much earlier than he claimed

in his testimony. If his testimony is to be believed

that he wanted more overnights, he took no action

to increase his time. The failure to exercise or seek orders for more visitation, including overnights, under

these particular circumstances, is a factor in assessing

whether or not Petitioner assumed parental-type duties, and, hence, whether or not he had regular visitation.

App. 45

In the A.A. case, the appellate court reversed the

trial court finding and held that pursuant to 7611(d), a

non-biological party was entitled to presumed parent

status and the biological father was not. The case is

informative in setting forth factors of what is factually

sufficient and what is not.

In the Sai and Torres matter, the credible portions

of evidence of Petitioner’s relationship and commitment to the child falls in between the presumed parent

party and the non-presumed parent party in that case.

The frequency of Petitioner’s visits with the child is

most comparable to the unsuccessful biological father

in that case, except that the visits in the Sai and Torres

case were in Petitioner’s home. Initially, this appears

significant since the Court, in In re A.A., found that

visits in the paternal grandparents’ and maternal

grandparents’ home enabled the father in that case to

avoid the constant parental-type task that comes with

having the child in one’s home, again, such as bathing,

feeding, changing, clothing and the like. The circumstances surrounding the visits led the Court in that

case to characterize the biological father’s visitation as

a matter of convenience.

However, in Sai and Torres, although Petitioner’s

visits were in his home, they were under circumstances

similar to In re A.A. The presence of Respondent and

the live-in paternal grandmother in the home during

the short visits, which the credible portions of the evidence and inferences therefrom indicated, that the parental childcare tasks were assumed by Respondent

and/or paternal grandmother. In the judgment of the

App. 46

Court, Petitioner’s involvement in parental-type care

during those times was incidental.

In the Sai and Torres matter, Petitioner’s involvement with the child was greater than the unsuccessful

biological fathers in both the In re A.A. and In re Cheyenne cases. Notwithstanding, the Court finds that the

evidence shows the involvement still insufficient to

meet the regular visitation standard articulated in both

cases. The evidence, oral and documentary, including

video and photographs, clearly shows Petitioner in a

loving relationship with the child and enjoying her

company. He had the joys of being her father, celebrating holidays with her, holding her out to others as his

own child, even participating and paying for one preschool enrollment and introducing the child to certain

elements of his culture and heritage. But the same evidence showed that his contact with the child was limited to fun activities and under conditions that enabled

him to avoid the responsibilities of constant parentaltype care. And as noted, his participation in that type

of paternal-type care was incidental.

The weight of the credible portions of the evidence

did indicate that Petitioner’s visitation was a matter of

convenience for him. Petitioner seemed focused on his

conflicted relationship with the Respondent, and his

inaction with respect to the child, was evidence of complacency and acceptance of his limited participation in

the child’s life.

In short, Petitioner’s limited participation with

the child appeared much more of his own choosing and

App. 47

not the result of restrictive or manipulative conduct on

the part of Respondent.

Regarding the timeliness of Petitioner’s legal action, Petitioner’s testimony indicated that for at least

the past two years, without him taking any action, he

was denied overnights despite requests; that Respondent was uncooperative in permitting visits with the

child, which became less frequent; that the parties

were not getting along and Respondent made purported thinly veiled threats that Petitioner needed to

defer to her because he needed her to be an ally in a

paternity action.

During this two-year period of time, Petitioner was

involved directly and indirectly with Respondent in

consultations with attorneys, which included issues of

the child and his relationship.

Additionally, contrary to Petitioner’s testimony,

Petitioner was aware that Respondent was residing

with Joined Party, where the child was also residing,

much earlier than testified by him. Petitioner’s contention that he learned that Respondent was together

with Joined Party only recently was not plausible or

credible, and was also impeached by credible testimony

of a coworker. This knowledge, viewed in conjunction

with Respondent limiting his contact with the child

and delaying until 2014, when the child was five years

old, to assert his paternity status in court or to seek

formal custody on visitation rights, in the Court’s view,

is untimely, and evidences conduct similar to that of

the biological father in In re Cheyenne, where inaction

App. 48

was characterized as permitting contact with the minor to “slide”.

In contrast, in the case of In re S.Y. and S.V., 2011

210 Cal. App. 4th 1023, where a party was found to be

a presumed parent, that party maintained a communal home with the other parent and child and consistently visited and stayed overnight three to four days

per week. Not only did the party openly assume the

rights and obligations of being a parent, the party

in that case embraced those rights and obligations.

The day-to-day assumption of parental-type tasks consistently undertaken by that party as well as various

financial commitments and arrangements were significant and substantial, and far exceed the conduct of Petitioner in the present case.

Other factors relevant to presumed parents status

are intertwined with the statutory requirements of receiving the child into the home and holding the child

out as the party’s child, with some factors more relevant to one or the other requirement. In that regard,

the evidence supports the following findings: Petitioner did not actively assist Respondent in prenatal

care. Petitioner did not pay pregnancy and birth expenses. Petitioner did not promptly take legal action to

obtain custody. Petitioner did not seek to have his

name placed on the birth certificate. Petitioner visited

the child in his home and other locations, but parentaltype care of the child on his part during his contact

with the child was, at most, incidental. Petitioner has

no involvement or participation in the child’s medical

or dental healthcare. Petitioner acknowledges that the

App. 49

child was his child and acknowledges the same to family members, friends, and preschool representatives.

This element was stipulated to by the parties. Petitioner arranged and paid for one of the child’s preschool/childcare providers from March 2013 to June

2014, which is a child support add-on expense. He also

paid some personal expenses of Respondent, which, in

the Court’s view, was not in the nature of child support.

In the totality, the payments attributable to child support are nominal and inadequate. Petitioner was employed at all times, but did not pay child support to

Respondent.

As in the In re A.A. case, the child perceived Petitioner to have some form of father status in her life.

However, there is no evidence that she views him as a

family member with her mother and other sibling, who

is rarely present during visits with Petitioner. The

child perceives her home with Respondent, Joined

Party, and her brother as her family and Joined Party

as her primary father. Petitioner was aware that this

was a developing situation for the child and let this occur without legal action until 2014.

Until the filing of this action in 2014, Petitioner

never asserted to Joined Party that he was the father

or that he was claiming parental rights to the child. As

discussed, Petitioner was aware that Respondent and

the child were living with Joined Party much earlier

than he testified. Also, the inference from the evidence

is that Petitioner was aware that Joined Party was

raising the child as his own as a family with Respondent and the parties’ older child. Notwithstanding,

App. 50

Petitioner delayed in taking any legal action until

2014, when the child was then five years old.

While this ruling determines legal rights and obligations of the parties during the minority of the child,

it does not change the fact that Petitioner is the biological father of the child, and that the child is aware of

Petitioner and had a relationship with him, notwithstanding not to the standard of a presumed father.

The child may seek or inquire about her biological

father as a teen or as a young adult, and therefore, the

manner in which the legal parents, Respondent and

Joined Party, handle this situation and this fact must

consider the best interests of the child. The absence of

a present legal right to visitation does not prohibit the

parents from informally agreeing to it to the extent it

may be psychologically healthy and in the best interests of the child.

Dated: 2.20.15

/s/ [Illegible]

Honorable Drew C. Takaichi

Judge of the Superior

Court of California,

County of Santa Clara

App. 51

SUPREME COURT MINUTES

WEDNESDAY, APRIL 25, 2018

SAN FRANCISCO, CALIFORNIA

S247559 H042611

Sixth Appellate District

Petition for review denied

S. (W.) v. T. (S.)

App. 52

Relevant Statutory Provisions

• California Family Code § 7570

The Legislature hereby finds and declares as follows:

(a) There is a compelling state interest in establishing paternity for all children. Establishing paternity is

the first step toward a child support award, which, in

turn, provides children with equal rights and access to

benefits, including, but not limited to, social security,

health insurance, survivors’ benefits, military benefits,

and inheritance rights. Knowledge of family medical

history is often necessary for correct medical diagnosis

and treatment. Additionally, knowing one’s father is

important to a child’s development.

(b) A simple system allowing for establishment of voluntary paternity will result in a significant increase in

the ease of establishing paternity, a significant increase in paternity establishment, an increase in the

number of children who have greater access to child

support and other benefits, and a significant decrease

in the time and money required to establish paternity

due to the removal of the need for a lengthy and expensive court process to determine and establish paternity

and is in the public interest.

• California Family Code § 7601(b)

“Parent and child relationship” as used in this part

means 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. The term includes the mother and

App. 53

child relationship and the father and child relationship.

• California Family Code § 7610

The parent and child relationship may be established

as follows:

(a) Between a child and the natural parent, it may be

established by proof of having given birth to the child,

or under this part.

(b) Between a child and an adoptive parent, it may be

established by proof of adoption.

• California Family Code § 7601(a)

“Natural parent” as used in this code means a nonadoptive parent established under this part, whether

biologically related to the child or not.

• California Family Code § 3010(a)

The mother of an unemancipated minor child and the

father, if presumed to be the father under Section 7611,

are equally entitled to the custody of the child.

• California Family Code § 7611(d)

A person is presumed to be the natural parent of a

child if . . . [t]he presumed parent receives the child

into his or her home and openly holds out the child as

his or her natural child.

• California Family Code § 7602

The parent and child relationship extends equally to

every child and to every parent, regardless of the marital status of the parents.

App. 54

• California Family Code § 7540

Except as provided in Section 7541, the child of a wife

cohabiting with her husband, who is not impotent or

sterile, is conclusively presumed to be a child of the

marriage.

• California Family Code § 7601(c)

This part does not preclude a finding that a child has

a parent and child relationship with more than two

parents.

• California Family Code § 7636

The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes except for

actions brought pursuant to Section 270 of the Penal

Code.

• California Family Code § 7601(d)

For purposes of state law, administrative regulations,

court rules, government policies, common law, and any

other provision or source of law governing the rights,

protections, benefits, responsibilities, obligations, and

duties of parents, any reference to two parents shall be

interpreted to apply to every parent of a child where

that child has been found to have more than two parents under this part.