Petition for Writ of Certiorari — Jerry K. v. Dawn D.

Supreme Court brief1998

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Supreme Court, v.

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98 62s iuL6 OR

Orrice OF THE ChERK

No.

In the Supreme Court of the United States

October Term, 1998

Jerry K.,

Petitioner, Real Party in Interest, and Appellant

VS.

Dawn D..,

Respondent, Petitioner, and Appellee

On Petition for a Writ of Certiorari to the

United States Supreme Court

Petition for Writ of Certiorari

FEY eye? SERRE PEE Ly

No.

In the Supreme Court of the United States

October Term, 1998

Jerry K.,

Petitioner, Real Party in Interest, and Appellant

Vs.

Dawn D.,

Respondent, Petitioner, and Appellee

On Petition for a Writ of Certiorari to the

United States Supreme Court

Petition for Writ of Certiorari

George E. Mc Gill Henry James Koehler IV

120 Birmingham Drive 9454 Wilshire Blvd.

Suite240 Suite 207

Cardiff-By-The-Sea, Beverly Hills, CA

CA 92007 - 90212

(760) 436-1146 (310) 247-7100

Counsel of Record Of-Counsel

Steven F. Wingfield

8241 La Mesa Bivd.

La Mesa, CA 91941

(619) 238-1568

Of Counsel

July 4, 1998

mares OO NA Om MBE 9 AS PNA ERIE IT v9

QUESTIONS PRESENTED

Whether a state deprives a person due process,

equal protection and his right to privacy under the

due process clause and/or the Equal Prutection

Clause under the 14* Amendment to the United

States Constitution and/or rights to privacy under

the United States Constitution when a) a parent and

child are deprived of a natural parent relationship

based on the unilateral decision of one parent to

exclude the other parent, when the excluded parent

with said child; b) a woman/mother has the

unilateral power to choose and dis-choose a legal

man/father based on her unilateral exclusion of the

biological father from a relationship with his child

(a form of unclean hands prevention) by statute; c) a

state’s statutory scheme prevents a

natural/biological father, who comes forward in a

prompt fashion to preserve his liberty interests and

who is unilaterally prevented from a relationship by

the mother, from being deprived of a hearing to

establish his paternity or visitation rights; d) a

statutory scheme grants rights to a natural mother to

prevent a man from having a relationship or

building a relationship with to a child by merely

keeping the child from contact with that man,

natural father or not.

Questions Presented............... i,

Table of Authorities ............... iii, iv

ME cb-cnnseccecccbmcesses Vv

Opinions Below ..............-++: 1

Pa pa cneenoceseetsnsass 1

Statement Of case .............20- 9

Reasons for Granting............. 13

I ccecntsdssetharea ee « 27

Appendix A

Opinion of the Trial Court ...... 31

Appendix B

Opinion of the Supreme Court of the State

Gah occececednceceters 45

Appendix C

Denial of visitation of the Trial Court .117

TABLE OF AUTHORITIES

Page

Cases

(Mont. 1995)

| FEE. 26

Adoption of Marie R. (1978)

79 Cal. App.3d 624, 145 Cal. Rptr. 122... 25

In Re Adoption of B.G.S. (1990)

Sea 27,28

In Re Angelia P, (1981) 28 Cal.3d908..... 28

(Minn.Ct.App. 1998)

STE TEMA i ck e dss csc ccesccss- 26

(1987)

257 Ga. 292, 358 S.E.2d 459........... 27

Brasher vy Brasher (1967) 253 Cal,App.2 867. 28

C.C. v. A.B. (Mass. 1990) 550 N.E.2d 365, 372

Caban v Mohammed (1979) 441 U.S. 380,

SRE a a vv ekcctccccics 14, 17,

22, 27

Clark v Jeter (1988) 486 U.S. 456........ 28

(La.Ct.App. 1985)

391 U. Ss. BB, (1968) ee 24

Gorton y, Gorton (N.Y. Fam.Ct. 1984)

Se og ees. 26

Green y, Long (Del. Fam.Ct. 1988) 547 A.2d 630 26

Gregory v, McLemore (Okla.Ct.App. 1995)

899 P.2d 1189..... oo toe 26

Griswold y, Connecticut, 381 U.S. 479

CU ere CE Ss ees 24

In Re the Guardianship of Ethan S. (1990)

221 Cal.App.3d 1403, 271 Cal Rptr. 121. 21

-iii-

Harris y Mc Crac (1980) 448 U.S. 297..... 28

ly. Harrington (Miss. 1994) 644 So.2d 1218 26

In Interest of J.W.T. (Tex. 1994) 872 S.W.2d 189 26

Cal. Rptr. 519... 26

Johnson v Calvert (1993) 5 Cal. 4th 84... 24

Johnson y, Studley-Preston (Idaho 1991)

812 P.2d 1216

In re Kelvin M. (1978) 77 Cal. App.3d 396,

143 Cal Rptr. 561............... 24

Adoption of Kelsey S., (1992) 1 Cal.4th 816. 24

Kovacs v. Cooper, 336 U.S. 77, 95 (1949) 23

KS. y. RS. (ind. 1996) 669 N.E.2d 399..... 26

Lehr v Robertson 463 U.S. 248,

SE iiss ci wesc dccécc ce’ 22, 27

Levy v, Louisiana, 391 U.S. 68, (1968).. 24

ME v.NH. (NJ. Super.Ct. App.Div. 1991)

Sia bkdasvsbunns cs dees ues 26

Mathews v, Eldridge (1976) 424 U.S.319. 27

In the Matter of Raquel Marie X. (1990)

76 N.Y.2d 387, SS9N.E.2d418........ 28

559 N.Y.S.2d 885, cert.den. 111 S.Ct. 517

May v, Anderson, 345 U.S. 528, (1953).. 23

McDaniels vy, Carisor (Wash. 1987) 738 P.2d 254 26

R.McG. v. J. W, (Colo. 1980) 615 P.2d 666... 25

In Re Melissa G, (1989) 213 Cal. App.3d 1082,

SOU CUI nc cccccccceses

Meyer v. Nebraska, 262 U.S. 390, (1923). 23

Michael H. et al. v. Gerald D, (1989)

-iv-

491 U.S. 110, 109 S.Ct. 2333,

105 L.Ed.2d 91,57 U.S.L.W.4691 .... 13,19,

Pickett y Brown (1983) 462 U.S.1........ 28

Plyler vy Doe (1982) U.S. 202............. 28

Prince v. Massachusetts, 321 U.S. 158

ee Ba Tins sccccese 23

Quilloin y Walcott (1978) 434 U.S. 246,

ES 16, 17

Richard Wy, Roberta Y (N.Y. App.Div. 1995)

Ge a ihiienis 60% i os iseccse 26

Rodney F, v Karen M. (1998)

61 Cal App.4th 233, and

amended 61 Cal.App.4th 1131 13

In Re Roger S. (1977) 19 Cal.3d921....... 28

Shapiro vy Thompson (1969) 394 U.S. 618,

ger Spanien FEN 15

Simcox y, Simcox (Ill. 1989) 546N.E.2d 609. 26

Skinner v, Oklahoma, 316 U.S. 535, (1942) 23, 24

in re Marriage of Slayton (lll_App.Ct. 1996)

nS Ce a a 26

Smith y, Jones (La.Ct-App. 1990) 566 So.2d 408 26

Smith v Organization of Foster Famili

for Equality and Reform (1977) 431 U.S. 816,

SE ee ee 22

Stanley vy. Illinois (1972) 405 U.S. 645... 26,27

In Re Steve B.D., (1986) 112 Idaho 22,

ESS Pe 26

In re Paternity of T.R.B. (Wis.Ct-App. 1990)

454. N.W.2d561....... oy ies te 26

Turner y, Whisted (Md. 1992) 607 A.2d 935; 26

Wisconsin v Yoder (1972) 406 U.S. 205,

Sooo i Giaheebaacccce. 22

-V-

(RAJ v. LBV. (Ariz.Ct.App. 1991) 817 P.2d 37;

Willmon y, Hunter (Ark. 1988) 761 S.W.2d 924 25

Family Code § 7540.

Family Code § 7541.

Family Code § 7550

Family Code § 7551

Family Code § 7554

Family Code § 7600

Family Code § 7610

Family Code § 7611

Family Code § 7630

Family Code § 7631

Uniform parentage Act section 2, 9B

U.L.A. 295, 296.

Si OO IIAU YD

>»

Constitutions

Constitution of the United States

Harry D. Krause, The Uniform Parentage Act,

8 Fam. L.Q. 1, 6-8 [1974]............ 24

-vi-

—

Bes

= 00

In The Supreme Court of The United States

October Term, 1998

Jerry K.,

Petitioner, Real Party in Interest, and Appellant

vs.

Dawn D.,

Respondent, Petitioner, and Appellee

OPINIONS BELOW

The ruling of the Trial Court, Superior Court

of California, County of Riverside, of 10/28/96,

against which Appellee, Dawn D., applied for a Writ

of Mandate, is attached as Appendix A. The opinion

of the Supreme Court of California, filed April 6,

1998, reported at Cal. 4th , is attached

as Appendix B. The denial of visitation by the Trial

Court, Superior Court of California, County of

Riverside, of 7/1/98, is attached as Appendix C.

JURISDICTION

Jerry K., the appellant, appeals from a

California Supreme Court decision, dated April 6,

1998, which held that “. . . application to this case

of sections 7611 and 7630 [of Family Code] does not

deprive him of due process. . . [and] to issue a writ of

mandate directing respondent Superior Court of

Rivziside County to vacate its order denying Dawn’s

motion for judgment on the pleadings and to enter a

new order granting the motion”, which ruling

> a

resulted in appellant being forever excluded from a

hearing to establish his rights as a parent and all

parental rights appertaining thereto. -

In the decision of to Michael H. et al.

vy. Gerald D, (1989) 491 U.S. 110, 109 S.Ct. 2333,

105 L.Ed.2d 91, 57 U.S.L.W. 4691, Justice Stevens

cast a concurring and the deciding opinion based on

his understanding that California Statute provided for

reasonable visitation rights to be granted to any

person, other than a parent, having an interest in the

child’s welfare, and a decision in Rodney F, v Karen

M. (1998) 61 Cal App.4th 233, and amended 61

Cal.App.4th 1131, (review denied Apr. 22, 1998),

wherein the Appellate Court said, “That we are even

stability we are preserving. . . . where all the parties

know who is the biological father, there is no reason

to assume the integrity of the ‘family’ will be in

jeopardy if visitation is allowed.”, Jerry K. further

applied to the trial court for visitation, in order to

exhaust all avenues. On July 1, 1998, the Superior

Court of Camiunme, County of Biverside, dic deny

such motion for visitation. *.

The judgment of the Supreme Court of the

State of California granting the Appellee’s Writ of

Mandate for judgment on the pleadings was filed on

April 6, 1998. A notice of Appeal was sent to the

Supreme Court of the State of California on July 3,

1998.

This appeal is being docketed in this Court

within 90 days from the judgment below. The

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jurisdiction of this court is invoked under 28 U.S.C.

section 1257. The provisions of 28 U.S.C. section

2403 may be applicable.

CONSTITUTIONAL PROVISIONS AND

STATUTES

Constitution of the United States

AMENDMENT XIV

Section 1. [Citizenship - Due process of law - Equal

protection. ]

All persons born or naturalized in the United States, and

bject to the jurisdiction thereof. are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of

the laws.

California State Constitution § 7.

Due process; Equal protection; Privileges and immunities

(a) A person may not be deprived of life, liberty, or

property without due process of law or denied equal

protection of the laws; provided, that nothing contained

herein or elsewhere in this Constitution imposes upon the

State of California or any public entity, board, or official

any obligations or responsibilities which exceed those

imposed by the Equal Protection Clause of the 14th

Amendment to the United States Constitution with respect

to the use of pupil school assignment or pupil ;

transportation. In enforcing this subdivision or any other

provision of this Constitution, no court of this state may

impose upon the State of California or any public entity,

board, or official any obligation or responsibility with

respect to the use of pupil school assignment or pupil

transportation, (1) except to remedy a specific violation by

such party that would also constitute a violation of the

Equal Protection Clause of the 14th Amendment to the

United Stztes Constitution, and (2) unless a federal court

would be permitted under federal decisional law to impose

that obligation or responsibility upon such party to remedy

the specific violation of the Equal Protection Clause of the

14th amendment of the United States Constitution.

(b) A citizen or class of citizens may not be granted

privileges or immunities not granted on the same terms to

all citizens. Privileges or immunities granted by the

Legislature may be altered or revoked.

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.

§ 7541. Use of blood tests to determine paternity

(a) Notwithstanding Section 7540 , if the court finds that

the conclusions of all the experts, as disclosed by the

evidence based on blood tests performed pursuant to

Chapter 2 (commencing with Section 7550), are that the

husband is not the father of the child, the question of

paternity of the husband shall be resolved accordingly.

(b) The notice of motion for blood tests under this section

may be filed not later than two years from the child's date

of birth by the husband, or for the purposes of establishing

paternity by the presumed father or the child through or by

the child's guardian ad litem. As used in this subdivision,

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“presumed father" has the meaning given in Sections 7611

and 7612.

may be filed by the mother of the child not later than two

years from the child's date of birth if the child's biological

father has filed an affidavit with the court acknowledging

paternity of the child.

(d) The notice of motion for blood tests pursuant to this

section shall be supported by a declaration under oath

submitted by the moving party stating the factual basis for

placing the issue of paternity before the court.

cases:

(1) A case which reached final judgment of paternity on or

before September 30, 1980. =

(2) A case coming within Section 7613.

(3) A case in which the wife, with the consent of the

husband, conceived by means of a surgical procedure.

§ 7550. Short title

This chapter may be cited as the Uniform Act on Blood

Tests to Determine Paternity.

§ 7551. Order for genetic tests in civil proceeding

involving paternity; “Genetic tests"

In a civil action or proceeding in which paternity is a

relevant fact, the court may upon its own initiative or upon

suggestion made by or on behalf of any person who is

involved, and shall upon motion of any party to the action

or proceeding made at a time so as not to delay the

proceedings unduly, order the mother, child, and alleged

father to submit to genetic tests. If a party refuses to

submit to the tests, the court may resolve the question of

paternity against that party or enforce its order if the rights

of others and the interests of justice so require. A party’ s

refusal to submit to the tests is admissible in evidence in

any proceeding to determine paternity. For the purposes

of Gls dhaiae “genetic tests" means any genetic test that

is generally acknowledged as reliable by accreditation

bodies designated by the United States Secretary of Health

and Human Services.

§ 7554. Effect of test results

(a) If the court finds that the conclusions of all the experts,

as disclosed by the evidence based upon the tests, are that

the alleged father is not the father of the child, the question

of paternity shall be resolved accordingly.

(b) If the experts disagree in their findings or conclusions,

or if the tests show the probability of the alleged father's

paternity, the question, subject to Section 352 of the

Evidence Code, shall be submitted upon all the evidence,

including evidence based upon the tests.

§ 7600. Citation of part

This part may be cited as the Uniform Parentage Act.

§ 7610. Methods of establishing

The parent and child relationship may be established as

follows:

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

established by proof of her having given birth to the child,

or under this part.

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

established by proof of adoption.

§ 7611. Presumption of paternity

A man is presumed to be the natural father of a child if he

meets the conditions provided in Chapter 1 (commencing

with Section 7540) or Chapter 3 (commencing with

Section 7570) of Part 2 or in any of the following

i caacceaaieeceiaiainiiaiillidiaitiiaait

eee

(a) He 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, he 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 truc:

(1) If the attempted marriage could be declared invalid

only by a court, the child is born during the attempte¢

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.

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:

(1) With his consent, he is named as the child's father on

(2) He is obligated to support the child under a written

voluntary promise or by court order.

(d) He receives the child into his home and openly holds

out the child as his natural child.

the United States engages in an Orderly Departure

Program or successor program, he acknowledges that he is

the child's father in a declaration under penalty of perjury,

as specified in Section 2015.5 of the Code of Civil

Procedure. This subdivision shall remain in effect only

until January 1, 1997, and on that date shall become

§ 7630. Persons who may bring action; When action may

be brought

(a) A child, the child's natural mother, or a man presumed

to be the child's father under subdivision (a), (b), or (c) of

Section 7611, may bring an action as follows:

(1) At any time for the purpose of declaring the existence

of the father and child relationship presumed under

subdivision (a), (b), or (c) of Section 7611.

(2) For the purpose of declaring the nonexistence of the

(a), (2), or (c) of Section 7611 only if the action is brought

witbin a reasonable time after obtaining knowledge of

raternity of the child by another man may be determined in

the same action, if he has been made a party.

(b) Any interested party may bring an action at any time

for the purpose of determining the existence or

nonexistence of the father and child relationship presumed

under subdivision (d) of Section 7611.

child relationship with respect to a child who has no

presumed father under Section 7611 or whose presumed

father is deceased may be brought by the child or personal

representative of the child, the State Department of Social

Services, the mother or the personal representative or a

parent of the mother if the mother has died or is a minor, a

man alleged or alleging himself to be the father, or the

personal representative or a parent of the alleged father if

the alleged father has died or is a minor. An action under

this subdivision shall be consolidated with a proceeding

pursuant to Section 7662 if a proceeding has been filed

under Chapter 5 (commencing with Section 7660). The

parental rights of the alleged natural father shall be

determined as set forth in Section 7664.

§ 7631. Action by man not presumed father to establish

paternity

Except as to cases coming within Chapter 1 (commencing

with Section 7540) of Part 2, a man not a presumed father

may bring an action for the purpose of declaring that he is

the natural father of a child having a presumed father

under Section 7611, if the mother relinquishes for,

consents to, or proposes to relinquish for or consent to, the

adoption of the child. An action under this section shall be

brought within 30 days after (1) the man is served as

prescribed in Section 7666 with a notice that he is or could

be the father of the child or (2) the birth of the child,

whichever is later. The commencement of the action

suspends a pending proceeding in connection with the

adoption of the child until a judgment in the action is final.

STATEMENT OF THE CASE

RAISING THE FEDERAL QUESTION

The appellee requested a judgment on the

pleadings in the Trial Court. The trial court found that

appellant had due process liberty interests in establishing a

relationship with his child as he has “promptly come

forward and demonstrated a full commitment to his

parental responsibilities.” The trial court found that in a

balance of “the interests of the father against the interests

of the state”, since father and mother were cohabiting at

time of conception, that conclusive presumption of

paternity did not fall to the husband and “it can be implied

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that the legislature perceived a decreased threat to the

family stability.” The court ruled the appellee’s “Motion

for Judgment on the Pleadings is denied” and granted

blood tests and further hearing for child custody and

The appellee petitioned the Appellate Court for a

Writ of Mandate for Judgment on the Pleadings and was

denied. |

The appellee petitioned the Supreme Court of the

State of Califomia for the Writ of mandate, which was

granted on April 6, 1998, holding that the appellant had no

due process rights to establish paternity, petition for child

custody or visitation hearings, and thereby terminated all

parental rights of the biological father. The appellant

argued his due process liberty interests and his claims of

equal protection under the law and Constitutions of the

State of Califomaia and the Constitution of the United

States. The Supreme Court considered and rejected

appellant’s constitutional claims and granted a Writ of

Mandate for Judgment on the Pleadings in a split decision,

the question of due process claims troubling two of the

Justices in a written dissent.

Around November of 1994, Jerry K. and Dawn D.

met on jury duty and became friends. On or about

January 6, 1995, Dawn D. moved in and began cohabiting

with Jerry K. There was talk of their getting married as

soon as they were able and of her getting pregnant and

having a child. There was a mutual agreement. Dawn D.

announced she was pregnant in March of 1995 after a

pregnancy test. On April 8, 1995, Dawn D. moved out of

Jerry K.’s home and moved in with her parents, going

back to her husband later.

Jerry K. immediately began negotiations for

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parental rights to visitation and a custody share with the as

yet unborn child, promising support both financially and

emotionally. Negotiations broke off and Jerry K. filed a

Summons and Petition for Paternity on or about August

17, 1995. Negotiations continued between attomeys. The

child was born on November 9, 1995. An agreement was

reached to schedule a blood test to establish paternity and

Dawn D., her husband and the child showed up on May 1,

1996 for a blood test. Instead the husband physically

attacked Jerry K. and charges were filed. Negotiations

broke off. A court date was set, and a hearing was held.

Dawn D. was relying upon Family Code section 7540

which states that “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.” The court found

that Dawn D. was separated and not cohabiting with her

husband during conception; hence, the conclusive

presumption was not applicable. The trial court found

that Jerry K. had preserved his interests in the child, came

forward promptly and “demonstrated a full commitment to

his parental responsibilities.” The trial court found that

there had been an agreement “reached for visitation and

payment of child support.” The trial court found Jerry K.

had due process rights and that in balancing the individual

interests with the state’s interests, that “the legislature

perceived a decreased threat to the family stability if a

wife is not cohabiting with her husband at the time of

conception.” The trial court ruled on October 28, 1996

that Judgment on the Pleadings was denied, that Jerry K.

had preserved his due process liberty interests and could

attempt to establish paternity through a genetic blood test,

with further hearings scheduled upon the completion of the

tests.

The appellee filed for a Writ of Mandate with the

4* District Court odf Appeal of the State of California and

requested a Stay, which Stay was granted. Appellant

responded, the Writ was denied. Appellant applied to the

trial court for an order for the genetic blood tests to be

taken and for a hearing to be scheduled. Test results

reflected a 98.6% probability of patemity.

Appellee applied for a Writ of Mandate and a

Stay was granted. Appellant, Jerry K., argued that he had

a due process liberty interest and that the California

statutory scheme is unconstitutional because it denies him

due process hearing and/or equal protection as a father.

On April 6, 1998, the Supreme Court granted the Writ of

Mandate for Judgment on the Pleadings and held that Jerry

appellee the unilateral ability to keep Jerry K. from

establishing a relationship with the child. Based upon that

behavior, Jerry K. was prevented from getting even

getting a hearing to allow contact or to establish a

relationship.

In Michael H. et al, vy Gerald D, (1989) 491 U.S.

110, 109 S.Ct. 2333, Justice Stevens believed that

visitation was available to any person with an interest in

the child. In Rodney F. v Karen M. (1998) 61

Cal App.4th 233, and amended 61 Cal App.4th 1131, the

Second District Appellate Court stated that visitation is

appropriate in circumstances such as these. Jerry K. filed

an Order to Show Cause for visitation, and was denied on

July 1, 1998. The last avenue for relationship with his

child was exhausted.

REASONS FOR GRANTING

_ THE QUESTIONS ARE SUBSTANTIAL

a. Equal Protection

The equal protection clause of the Constitution

requires that legislation operate equally upon all members

of a group, in this case upon biological parents. However

mothers are afforded almost total control of the parental

choice, being able to choose and dischoose the father at

allows the mother to deny the biological father entrance to

a relationship with his child based simply on her

unwillingness to allow access to the father casts an

unusual burden and impossible burden on the father and

the child to have a relationship with each other. Mother

can simply refuse marriage, or simply deny access to a

father so he may not take the child into his home and hold

the child out as his own.

The mother in the instant case argued that the

state has an interest in upholding the child’s welfare and

stability of a marital family. In the dissent Justice Chin

examined these issues and found mother’s argument

lacking. “{O]n the facts of this case, they do not justify

the state’s categorical that Jerry’s exclusion

from the child’s life is warranted and its refusal to afford

Jerry a hearing on the matter.”

In order for the state’s interests to override a

personal interest there must be an overwhelming state

interest that needs to be preserved.. In Caban v

Mohammed (1979) 441 U.S. 380, 99 S.Ct. 1760, the

Court determined that the sex based distinction bore no

substantial relationship to any important state interest, and

as such, was in violation of Constitutional equal protection

principles, in an adoption scheme that required only a

mother’s consent for an adoption and not a father’s. It is

<0.

similar here, the mother is invested with a measure of

control and unilateral veto power upon paternity by simply |

withholding her hand in marriage or by saying no to

father’s access to the child for no reason other than her

own personal choice, be it invidious, vindictive or

magnanimous. Father is afforded no like control or

exercise. Mother need not show detriment to the child by

the relationship, nor the best interests of the child in

legislation clearly discriminates against fathers based on

their gender and does not hold mothers to equal standards.

When fundamental rights are involved even a

rational relationship between the regulation and a

permissible legislative purpose may not be sufficient to

uphold the regulation. Such regulation will stand only if it

is “necessary to promote a compelling governmental

interest.” Shapiro y Thompson (1969) 394 U.S. 618, 89

S.Ct. 1322. In a case where the biological father has come

forward promptly to accept his responsibilities, mother’s

unilateral reluctance to prevent such relationship does not :

rise to the level of an overwhelming state interest in

preventing such a relationship. In fact, it would seem that

it would be quite the contrary. The state has found a well

of support for the child, the very basis for the paternity |

statutes in the first place - that the child have a mainstay

of support both financial and emotional that the child may

grow well in society and not be a drain on the Public dole

or resources. It is clear that the court and the California

based on sex. In fact it encourages mother when she docs

not want to play fairly with father or child. She only needs

to refuse biological father access and substitute some non-

biological man in his place to prevent biological of his

paternal rights and the child of a biological father.

-14-

The statutory scheme of the California Family

Code is the source for possible great harm to the child.

Mother can unilaterally deny the child a natural father.

She can substitute another man in his place, a man who

does not necessarily have the best interests of the child in

mind. He can be a party who only wishes to visit

vindictive or misguided harm and/or punishment on the

natural father. He can be substituted and not be able or

willing to offer the financia! or emotional support that the

child needs.

Mother can use this substitute for the purpose of

displacing natural father and later opt for a blood test of

this substitute and disqualify him as father and thereby

create a totally legally fatherless child who is now denied

forever the support necessary for healthy growth. Further

mother can set out on a path of fraud for the fathers -

natural and selected - and the child for her own selective

In a similar type scheme of unilateral control over

a child by a mother under Georgia law re: adoption,

Quilloin y Walcott (1978) 434 U.S. 246, 98 S.Ct. 549,

Georgia law permits a father veto power over unilateral

control and decision making by only petitioning the court

to legitimate his child, the very thing that is lacking in the

California statutory scheme. In fact, as in this case, the

mother holds all the power to prevent such legitimation by

the natural father. There is no basis for the underlying

assumption that only a father who has undertaken the

bonds of marriage or who has provided a common home

may have a natural parental interest and so

constitutionally protected liberty interests. In fact a father

who comes forward, and in this case even before the birth

of the child, to establish paternity, accept the obligations

financially for the child and attempt to gain a custodial or

a, 2

visitation position w th the child is demonstrating his

concern and interest.

In the instant case there can be no plea that the

extant family needs to be protected by the fiction of

husband-dad vs bio-dad in that the biological father was

cohabiting with mother at time of conception and he came

before birth of the child. There is no overwhelming state

interest to preserve this kind of marriage when, as the trial

court found, mother was not living with her husband at

time of conception. The Quilloin Court, supra, premised

its decision to forever terminate biological father’s rights

on the fact that father never came forward for over a

period of eleven years to preserve his interest or accept his

where the father never has come forward to participate in

the rearing of his child, nothing in the Equal Protection

forward, promptly and before the child was bon. So there

The California statutory scheme can be and is

used in this case to interfere with the parental relationship

So necessary for the proper development of the child and

-16-

as such is contrary to the very spirit of the Uniform

Parentage Act. The California statutes therefor are

contrary to both of these interests. They are in direct

contravention to the establishment of the parent-child

relinquishes or proposes to relinquish or consent to an

adoption.

The Trial Court granted to the Jerry K. the

claim of cohabitation with her husband at the time of

conception and the Supreme Court did not challenge the

findings.

into an agreement at one point which she then capriciously

decided not to honor making only the court an available

remedy to Jerry K to establish a relationship with his child.

There was nothing more Jerry K. could have done, as the

Trial Court found when it granted Jerry K.’s petition.

The due process clause of the Fourteenth

Amendment to the Constitution of the United States

provides that no “state shall deprive any person of life,

liberty, or property, without due process of law. .

(U.S. Constitution, 14% Amendment section 1) Of course

there is more to due process than procedure, there are

substantive protections of certain liberties from state

intervention except for compelling reasons. There are no

such compelling reasons here. In fact, in the Michael H. et

al. vy Gerald D, (1989) 491 U.S. 110, 109 S.Ct. 2333,

Justices O’Connor and Kennedy expressed the view that

no single mode of historical analysis, as imposed by

Justice Scalia in his opinion, should be imposed when

identifying due process liberty interests. Justice Stevens

found that due process had not been violated by the

statutory scheme of irrebutable presumption of paternity

because visitation was available to any person, other than

a parent, having an interest in the child’s welfare (which

visitation is not available, but was based on a mis-reading

of the California statutory scheme.) Justice Brennan,

joined by Justices Marshall and Blackmun, expressed the

view that the statutory scheme of the presumption statute

was unconstitutional and the flaw in the statute was the

kind that procedural due process was designed to correct

and violated procedural due process rights. Justice White

expressed the view that an unwed father who has

demonstrated a sufficient commitment to his paternity has

a protected liberty interest in a relationship with his child,

that the presumption statute of the California scheme was

not justified by the states interests and that procedural due

process rights were violated by the denial of any

meaningful opportunity to be heard in order to establish

patemity. The score is 7-2 that there may be some due

process rights involved. It follows that this case stands for

the position that the United States Supreme Court will not -

-18-

iniaesiiimnaninenadiiaiaieihaiiaiaailiiiiiaiiiiiaiiida |

foreclose the possibility that a natural father might ever

have an interest protected by the Federal Constitution in

his relationship with his child. Only due process was

parent’s legal relationship with the child. “The parent and

child relationship extends equally to every child and to

every parent, regardless of the marital status of the

parents.” (Uniform parentage Act section 2, 9B U.L.A.

295, 296.) This position over-rides any State statutory

scheme to the opposite in spirit and in fact.

Since the advent of the Uniform Parentage Act

many statutes that discriminated against the children of

unwed parents have been ruled unconstitutional. (Harry

D. Krause, The Uniform Parentage Act, 8 Fam. L.Q. 1, 6-

8 [1974])

Within a year after the Michael H. case, supra, the

California Courts refused to apply a conclusive

presumption to prevent natural fathers to establish

paternity in In Re Melissa G, (1989) 213 Cal App.3d

1082, 261 Cal.Rptr. 894, on Constitutional grounds and in

In Re the Guardianship of Ethan S, (1990) 221

Cal.App.3d 1403, 271 Cal.Rptr. 121, on grounds of

equitable estoppel. In 1990, the law of conclusive

presumption was changed to allow for parent-child

Jationshi

In the instant case there would have been a parent-

child relationship if the natural father had been allowed a

court hearing to establish his paternity and petition for

such a custodial position. It would have existed de facto

had mother not unilaterally decided to prevent such. After

such unclean hands prevention, mother relies on the

absence of this relationship to prevent the establishment of

-19-

paternity. The court allowed such unclean hands to serve

as a bar to a court hearing.

The fundamental right to a day in court to

establish such a fundamental right as a paternal

relationship is more important than any unilateral

capricious maternal desire to prevent father-child

relationship. Father has a procedural due process right

that has been denied and must be reinstated. “When an

unwed father demonstrates a full commitment to the

responsibilities of parenthood by ‘com[ing] forward to

participate in the rearing of his child,” Caban, supra, his

interest in personal contact with his child acquires

eee ee

Reform (1977) 431 US. 816, 97 S.Ct. 2094. ‘Quoting

Wisconsin v Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526.

“The significance of the biological connection is that it

offers the natural father an opportunity that no other male

possesses to develop a relationship with his offspring. If

he grasps that opportunity and accepts some measure of

responsibility for the child’s future, he may enjoy the

blessings of the parent-child relationship and make

uniquely valuable contributions to the child’s development.

If he fails to do so, the Federal Constitution will not

automatically compel a state to listen to his opinion of

where the child’s best interests lic.” Lehr y Robertson 463

U.S. 248, 103 S.Ct. 2985. Thus it is obvious that the

important question of the unwed father’s rights regarding

his child has substantial protection under the due process

clause.

The California Courts have recognized a father’s |

“The private interest here, that of a man in the

children he has sired and raised, undeniably i

-20-

warrants deference and, absent a powerful

countervailing interest, protection. It is plain

that the interest of a parent in the

companionship, care, custody, and management

of his or her children ‘come{s] to this Court with

a momentum for respect lacking when appeal is

made to liberties which derive merely from

shifting economic arrangements.’ Kovacs v.

Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J.,

concurring).

"The Court has frequently emphasized the

importance of the family. The rights to conceive

and to raise one's children have been deemed

‘essential,’ Meyer v, Nebraska, 262 U.S. 390,

399 (1923), ‘basic civil rights of man,' Skinner

y. Oklahoma, 316 U.S. 535, 541 (1942), and

'[rlights far more precious ... than property

rights, May v, Anderson, 345 U.S. 528, 533

(1953). ‘It is cardinal with us that the custody,

care and nurture of the child reside first in the

neither supply nor hinder.' Prince v.

Massachusetts, 321 U.S. 158, 166 (1944). The

integrity of the family unit has found protection

in the Due Process Clause of the Fourteenth

Amendment, Meyer v, Nebraska, supra., at 399,

the Equal Protection Clause of the Fourteenth

Amendment, supra., at

541, and the Ninth

Connecticut, 381 U.S. 479, 496 (1965)

(Goldberg, J., concurring).

“Nor has the law refused to recognize those

family relationships unlegitimized by a marriage

-21-

ceremony. The Court has declared

unconstitutional a state statute denying natural,

but illegitimate, children a wrongful-death action

for the death of their mother, emphasizing that

such children cannot be denied the right of other

children because familial bonds in such cases

were often as warm, enduring, and important as

those arising within a more formally organized

family unit. Levy v, Louisiana, 391 U.S. 68,

71-72 (1968). ‘To say that the test of equal

protection should be the “legal” rather than the

biological relationship is to avoid the issue. For

the Equal Protection Clause necessarily limits

the authority of a State to draw such “legal”

lines as it chooses.’ Glona vy. American

Guarantee Co., 391 U.S. 73, 75-76 (1968). In

re Kelvin M. (1978) 77 Cal._App.3d 396, 143

Cal.Rptr. 561

California has recognized a genetic father’s duc _

process rights, Johnson v Calvert (1993) 5 Cal.4th 84,

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

Here the natural father is being prevented from

even having his day in court, procedural due process

rights, to attempt to establish his parental status and

accept the rights and responsibilities of fathering a child.

Where interests of such Constitutional importance are

involved, the very fundamental rights of a father and child

to a father-child relationship, there is no foundation for a

state to prevent such, and certainly not in such instances as

this.

c. Unilateral power is not equal or due process

Under the California statutory scheme the natural

father of a child has no rights unless the mother decides to

allow it. Mother can even give the child away to others

-22-

without his consent and even over his objections with no

hearing, as mother has, in essence, done here by excluding

Jerry K. and giving the child to her husband. It is not

necessary to recite the litany of abuses that can arise from

this ability for mother to exercise unilateral power through

anger, vindictiveness, fraud, or even misguided

conceptions of good intentions.

In the Adoption of Maric R. (1978) 79

Cal_App.3d 624, 145 Cal Rptr. 122, the trial court found

that the presumed father constructively received the baby

as his own, although actual receipt of the baby, whom the

presumed father had never seen, was prevented by the

mother. The Court of Appeal reversed since there was no

actual contact, however minimal, between the man

claiming to be the father and the child holding that absent

this minimal contact, there can be no receipt, constructive

or otherwise, into the home of a purported father, despite

the fact that his attempts at contact with the child were

refused by the mother.

In Jermstad y, McNelis (1989) 210 Cal.App.3d

528, 258 Cal. Rptr. 519, the trial court allowed the father

access to his child and stated orally that the father had

equal rights with the mother. On that basis, it awarded

him custody. If the trial court . . . deems it to be in the

best interest of the child it may grant sufficient custody to

the natural father to pei mit him to receive the child into his

home and openly hold out the child as his natural child.

This will result in the natural father acquiring the status of

a presumed father... Despite the wishes of the mother,

under the Uniform Parentage Act the natural father may

acquire the status of a presumed father. (at p. 543).

Here we have a isther who is prevented from

receipt of the child into his home which the Supreme Court

uses to deny him any parental rights at all. However, with

-23-

a perusal of the above decisions, his coming forward

promptly, as the trial court found, should entitle him to

constructive receipt and as such give him standing under

the federal Uniform Parentage Act.

Several states have dealt with this problem and have

decided that a mother does not have a unilateral right to

prevent a father from a relationship with his child and then

rely on that prevention to deny him status as a father, that

fathers have Constitutional rights whether mothers like it

or not.

In Idaho, in In Re Steve B.D., (1986) 112 Idaho

22, 730 P.2d 942, the Supreme Court of that state found

two constitutional rights of unwed fathers: to enjoy

established relationships with their children and to form

the inchoate interest in establishing a relationship could

not be denied by the state.

In Georgia, the Georgia Supreme Court concluded

that unmarried fathers have a constitutionally protected

opportunity interest to develop a relationship with their

children, that this interest begins at conception and

probably lasts through the minority of the child. In Re

Baby Girl Eason, (1987) 257 Ga. 292, 358 S.E.2d 459.

In Louisiana, the Louisiana Supreme Court

considered the question of a father’s Constitutional

guaranteed right in In Re Adoption of B.G.S. (1990) 556

So.2d 545. The Court held that “a fully committed unwed

father of a newborn child has a Constitutionally protected

interest in his opportunity to develop a mutually beneficial

emotional or psychological bond with his child” (at 550)

and rejected the interpretation of Lehr (supra) and Stanley

y. Illinois (1972) 405 U.S. 645 that only an unwed father

with a developed relationship with his child may have a

constitutionally protected interest in parenthood, that, for

-24-

the father of a newborn, the requirement is “coming

forward to participate in the rearing of his child” (quoting

Lehr, 463 U.S. at 261 and Caban, 441 U.S. at 392.) The

court further found further, applying the test of Mathews

y. Eldridge (1976) 424 U.S. 319, that the “risk of an

erroneous deprivation of such an interest is not

insubstantial, given the statute’s complete reliance upon

the natural mother to decide whether the natural father

shall be notified or consulted prior to the termination of his

interest.” (In Re Adoption of B.G.S, (1990) 556 So.2d

545, 553.)

In New York, in

(1990) 76 N.Y.2d 387, 559 N.E.2d 418, 559 N.Y.S.2d

885, cert.den. 111 S.Ct. 517, the court found that a living

together arrangement was rejected since it “can easily be

used to block the father’s rights. But even more

significantly, it permits adoption despite the father’s

prompt objection even when he wishes to form or actual

has attempted to form a relationship with the infant that

would satisfy the State as substantial, continuous and

meaningful by any other standard.” (Id. at 405, 559

N.E.2d at 426, 559 N.Y.S.2d at 863) the court struck

down the statute as unconstitutional.

Here Jerry K. has been prevented from asserting

his rights and relationship with his child merely be a

unilateral decision of the mother to deny Jerry access to

his child, and, such action is supported by statute. His

Constitutional rights to Due Process and Equal Protection

are denied by the unclean hands of the mother.

At least 20 States believe that fathers in Jerry K’s

position are entitled to some form of hearing before they

are excluded from the lives of their biological children.

(RAS. v. LBV. (Ariz.Ct-App. 1991) 817 P.2d 37;

Willmon y, Hunter (Ark. 1988) 761 S.W.2d 924; R McG.

25.

vis W. (Colo. 1980) 615 P.2d 666; Weidenbacher v.

Duclos (Conn. 1995) 661 A.2d 988; Green y, Long (Del.

Fam.Ct. 1988) 547 A.2d 630; Johnson v, Studley-Preston

(Idaho 1991) 812 P.2d 1216, 1219-1221; Simcox y.

Simeox (Ill. 1989) 546 N.E.2d 609, 612; Jn re Marriage

of Slayton (Ill_App.Ct. 1996) 660 N.E.2d 562; KS. v.

RS. (Ind. 1996) 669 N.E.2d 399; Smith v, Jones

(La.CtApp. 1990) 566 So.2d 408; Finnerty v. Boyett

(La.Ct.App. 1985) 469 So.2d 287; Turner v. Whisted

(Md. 1992) 607 A.2d 935; In re Paternity of B.J.H.

(Minn.Ct._App. 1998) 573 N.W.2d 99; Kelly y, Cataldo

(Minn.Ct_App. 1992) 488 N.W.2d 822, 826-828; Jy v.

Harrington (Miss. 1994) 644 So.2d 1218; J ML. y.

C.L (Mo.CtApp. 1976) 536 S.W.2d 944, 945-947;

Matter of Paternity of Adam (Mont. 1995) 903 P.2d 207;

ME _y. NE. (NJ. Super.Ct. App.Div. 1991) 599 A.2d

1297, Richard Wy, Roberta Y (N.Y. App.Div. 1995) 629

N.Y.S.2d 512; Gorton y, Gorton (N.Y. Fam.Ct. 1984)

475 N.Y.S.2d 767; Gregory v, McLemore (Okia.Ct-App.

1995) 899 P.2d 1189; Jn Interest of J.W.T. (Tex. 1994)

872 S.W.2d 189; McDaniels y, Carlson (Wash. 1987) ,

738 P.2d 254; In re Paternity of T.R.B. (Wis.Ct-App.

1990) 454 N.W.2d 561; see also C.C. vy. A.B. (Mass.

1990) 550 N.E.2d 365, 372, fn. 10 (leaving open

possibility of action “where, due to the actions of the

mother, (the natural father] ha[s} not yet formed a

substantial relationship with the child”); Stone, supra, 474

S.E.2d at page 566 (leaving open possibility of action

where natural father “proves that he would share in the

care of, responsibility for, and support of the child but for

the mother’s ion”).

of the Justices of the Supreme Court have

been among the main believers in due process rights -

Justices Breyer, Suter and Kennedy, in their own right.

-26-

Justice O’Connor wrote the opinions finding that a statute

of limitations re: paternity issues are unconstitutional.

Justice Ginsberg has been primary in the rights of Equal

Protection.

CONCLUSIONS

constitutional liberty interests of equal protection and due

process that are at stake here. These questions do not only

involve the interests of the father herein but also the liberty

interests of the child, whose interests are not being

represented herein except by the natural father. All over

this country, the plight of fatheriess children and the

absence of fathers from the homes and lives of their

children are being decried. California has a problem of

epidemic proportions in the amount of unwed births per

year, of children going to bed in homes absent of their

natural father. And this problem is not much less in other

Cities and states in the United States today. Here we have

a father who has come forward to accept the rights and

responsibilities of fatherhood and he is being prevented

from doing so by the unilateral capricious and fickle

decision of mother. Mother is being supported by a

statutory scheme that not only prevents the natural father

from a relationship with his child - equal protection but

also even prevents him from a day in court - procedural

due process.

In fact the only way a natural father who has been

denied access to the courts to bring an action for the

purpose of declaring that he is the natural father of a child

having a presumed father under section 7611 of the Family

Code is if the mother relinquishes for, consents to, or

proposes to relinquish or consent to, the adoption of the

child. Certainly this is a most blatant statutory scheme for

-27-

the denial of due process, lack of equal protection under

the law, and lack of right to privacy in procreation and

life.

There have been a few overwhelming Supreme

Court cases on the issue of Due Process - Pickett y Brown

(1983) 462 U.S. 1, and Clark y Jeter (1988) 486 U.S. 456.

California used to recognize due process rights -InRe

Angelia P, (1981) 28 Cal.3d 908, and In Re Roger S.

(1977) 19 Cal. 3d 921. Equal Protection has been

important to this Court in Harris y Mc Crae (1980) 448

U.S. 297 and Plyler vy Doe (1982) U.S. 202. In

California, a mother was not allowed to lose her child to a

married father under the exact reverse circumstances in

Brasher v Brasher (1967) 253 Cal,App.2 867.

Susan v Priest (1976) 18 C

The petition for a Writ of Certiorari .should be

granted.

Dated: July 4, 1998

Respectfully submitted, —

George Mc Gill, Esq.

120 Birmingham Dr., Suite 240

Cardiff-by-the Sea, CA 92007

(760) 436-1146

-28-

Henry James Koehler [TV (Of Counsel)

Law Offices of Henry James Koehler IV

9454 Wilshire Blvd., Suite 207

Beverly Hills, CA 90212

Steven F. Wingfield (Of Counsel)

8241 La Mesa Blvd.

La Mesa, Ca 91941

(619) 238-1568

-30-

Appendix A

et.

Appendix “A”

Title: JERRY KRCHMAR v DAWN ELIZABETH

DEZERN Date: 10/28/96 D-157628

RULING ON SUBMITTED MATTER

Defendant and her husband, Frank Farkas

were married in June 1989. In early January, 1995.

Defendant separated from her husband and began

living in a household with Plaintiff. In February 1995,

Defendant became pregnant. In April, 1995,

Defendant moved out of the home with Plaintiff and

recommenced living with her husband. On August

18, 1995, Plaintiff filed the complaint in this action to

establish his relationship with an as yet unborn child.

A child was born to Defendant on 11/9/95, and that

child is residing, and has resided, with Defendant and

her husband since that time. Between December,

1995, and April, 1996, the parties through counsel,

agreed to participate in paternity testing, although

Defendant now refuses to voluntarily test for

paternity.

On 7/18196 Plaintiff filed a Notice of Motion

for child custody, visitation and for blood testing.. On

8/27/96, Defeudant filed a Notice of Motion for

Judgment on the Pleadings. The matters were argued

on 10/8/96 and the matter deemed submitted.

Plaintiff s counsel made a timely request for a

Statement of Decision.

-32-

The gravamen of Defendant's Motion for

Judgment on the Pleadings's that Plaintiff has no

standing to allege paternity since her husband, Frank

Farkas, is a presumed father.

"Family Code ° 7540. Presumption arising from birth

of child during marriage Except as provided in

Section 7541 , the child of a wife cohabiting with her

husband, who is not impoteni or sterile, is

conclusively presumed to be a child of the marriage."

The presumption under this code section is

not applicable. There is no evidence that Defendant's

husband was impotent or sterile at the time the child

was conceived, however, the court finds that

Defendant was not cohabiting with her husband at the

time the child at issue was conceived. It is clear that

Defendant and her husband had separated and that

Defendant was cohabiting with Plaintiff during the

time that the child was conceived.

Family Code Section 7541 applies to use of

blood tests to rebut the presumption

under Family Code Section 7540.

"Family Code * 7541. Use of blood tests to

determine paternity

(a) Notwithstanding Section 7540, if the court finds

that the conclusions of all the experts, as disclosed by

the evidence based on blood tests performed pursuant

to Chapter 2 (commencing with Section 7550), are

that the husband is not the father of the child, the

question of paternity of the husband shall be resolved

accordingly.

(b) The notice of motion for blood tests

under this section may be filed not later than two

years from the child's date of birth by the hushand, or

for the purposes of establishing paternity by ‘he

presumed father

page two D-157628

or by the child's guardian ad litem. As used in this

subdivision, “presumed father" has the

meaning given in Sections 7611 and 7612.

under this section may be filed by the mother of the

child not later than two years from the child's date of

birth if the child's biological father has filed an

affidavit with the court acknowledging paternity of

the child.

(d) The notice of motion for blood tests

pursuant to this section shall be supported by a

declaration under oath submitted by the moving party

stating the factual basis for placing

the issue of paternity before the court.

(e) Subdivision (a) does not apply in any of

the following cases:

(1) A case which reached final judgment of paternixy

on or before September 30, 1980.

(2) A case coming within Section 7613.

(3) A case in which the wife, with the consent of the

husband, conceived by means of a surgical

procedure."

-34.

If the presumption of Family Code Section

7540 does not apply, then paternity must be

determined pursuant to the Uniform Parentage Act,

commencing at Family code Section 7600.

~ Family Code Section 7611 provides for a

presumption of paternity in certain circumstances.

" 7611. Presumption of paternity

A man is presumed to be the natural father of a child

if he meets the conditions provided in Chapter 1

(commencing with Section 7540) or Chapter 3

(commencing with Section 7570) of Part 2 or in any

of the following subdivisions:

(a) He 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, he 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.

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:

1) With his consent, he is named as the child's father

on the child's birth certificate.

(2)He is obligated to support the child under a

written voluntary promise or by court order.

(d) He receives the child into his home and openly

holds out the child as his natural child.

(e) If the child was born and resides in a nation with

which the United States engages in an Orderly

Departure Program or successor program, he

acknowledges that be is the child's father in

a declaration under penalty of perjury, as specified in

Section 2015.5 of the Code of Civil

Procedure. This subdivision shall remain in effect

only until January 1, 1997, and on that date

shall become inoperative. (Bolding added)."

pagethree D-157628

In the case at hand, Defendant's husband is a

presumed father pursuant to Family Code Section

7611 (a) and (d), «se the child was born while

Defendant and her husband were married, and Mr.

-36-

Farkas has received the child into his home and held

out the child as his natural child.

It does not appear that Plaintiff is in any of

those classes defined under FC 7611, and therefore

cannot be classified as a presumed father.

The presumptions raised (with the exception

of that presumption under FC § 7540) are

presumptions affecting the burden of proof, and may

be rebutted by clear and convincing evidence.

"Family Code § 7612. Rebuttal of paternity

‘ory: th ‘

(a) Except as provided in Chapter 1 (commencing

with Section 7540) and Chapter 3 (commencing with

Section 7570) of Part 2 or in Section 20102, a

presumption under Section 7611 is a rebuttable

presumption affecting the burden of proof and may

be rebutted in an appropriate. action only by clear

(b) If tvvo or more presumptions arise under Section

7611 which conflict with each other, the

presumption which on the facts is founded on the

weightier considerations of policy and logic

controls.

by a judgment establishing paternity of the child by

another man.".

Family. Code Section 7630 provides control

over who may bring an actiop to establish paternity.

“ 7630. Persons who may bring action; When action

-37~

may be brought

(a) A child, the child's natural mother, or a man

presumed to be the child's father under subdivision

(a), (0), or (c) of Section 7611, may bring an action

as follows:

(1) At any time for the purpose of declaring the

existence of the father and child relationship

presumed under subdivision (a), (b), or (c) of Section

7611.

(2) For the purpose of declaring the nonexistence of

the father and child relationship presumed under

subdivision (a)' (b), or (c) of Section 7611 only if the

action is brought within a reasonable time after

obtaining knowledge of relevant facts. After the

presumption has been rebutted, paternity of the child

by another man may be determined in the same

action, if he has been made a party.

(b) Any interested party may bring an action at any

time for the purpose of determining the existence or

nonexistence of the father and child relationship

presumed under subdivision (d) of Section 7611.

and child relationship with respect to a child who has

no presumed father under Section 7611 or whose

presumed father is deceased may be brought by the

child or personal representative of the child, the State

Department of Social Services, the mother or the

personal representative or a parent of the mother if

the mother has died or is a minor, a man alleged or

alleging himself to be the father, or the personal

-38-

representative or a parent of the alleged father if the

alleged father has died or is a minor. An action under

this subdivision shall be consolidated with a

proceeding pursuant to Section 7662 if a proceeding

has been filed under Chapter 5 (commencing with

Section 7660). The parental rights of the alleged

natural father shall be determined as set forth in

Section 7664."

page four ~D-157628

Defendant cites the court to Michael M. V.

Giovanna F,, (1992) 5 Cal. App.4th 1272, in support

of her position. The facts in that case are somewhat

similar to those in this case. In Michael M. V.

Giovanna F.,, In that case the child was conceived by

the mother and biological father prior to the mother

marrying her husband. Int the present case the child

was conceived while Defendant and her wife were

separated after marriage.

Defendant correctly cites a headnote in In

Michael M, V, Giovanna F., in its finding that under

what is now Femily Code Sections 7630 & 7611, the

Plaintiff had no standing to sue for a declaration of

paternity, since there was another presumed father

and Plaintiff had been unable to take the child into his

home and hold it out as his own.

Defendant,.however, has apparently failed to read the

text of the opinion in that case. The court in In

Michael M. V. Giovanna F, stated "We therefore

hold that where unwed parents conceive, and the

-39-

mother marries another before the birth of the child,

the biological father’s substantive due process right to

a relationship with his child requires that he be

allowed standing under the UPA to attempt to

establish his paternity of the child, so long as he has

promptly taken sufficient steps to preserve his

interest." is

This due process issue was also addressed in

the context of an adoption case, relative to the rights

of a non-presumed parent to object to an adoption.

The California Supreme Court in Adoption of

Michael H.. (1995) 10 Cal.4th 1043, 1052, restated its

holding in Adoption of Kelsey S. (1992) 1 Cal. 4th

816 in stating “that an unwed father who has no

statutory right to block a third party adoption by

withholding consent may nevertheless have a

constitutional right to do so under the due process

and equal protection clauses of the Fourteenth

father's constitutional interest is merely inchoate

(Lehr v. Robertson (1983) 463 U.S. 248, 261-263

[77 LEd.2d 614, 626-628, 103 S.Ct. 2985]) and does

not ripen into a constitutional right that he can assert

to prevent adoption unless he proves that he has

“promptly come[] forward and demonstrated] a full

commitment to his parental responsibilities..."

(Kelsey S., supra, I Cal. 4th 816, 849.)

It is hard to imagine what else the Plaintiff

could have done under these circumstances to

-40-

“preserve his interest" in this case and to prove that

he has" promptly come forward and demonstrated a

full commitment to his parental responsibilities".

Piaintiff filed the within action to determine parentage

prior to the birth of the child. Once he learned that

the child was born, he began negotiations with

Defendant for blood testing, payment of child support

and visitation. It would appear from correspondence

between counsel that an agreement had been reached

for visitation and payment of child support. It also

appears that Plaintiff took a parenting class which

was completed on 1217/95 in preparation for the

birth of the child and his anticipated parental duties.

The analysis does not end there however.

After determining that the defendatn has due process

rights, the court must then balance the interests of the

father against the interests of the state. The state has

a continuing interest in the welfare of the child and in

“familial stability" (citations omitted) Michael M. V.

Giovanna F.. supra. In the case at hand, the child was

conceived while Defendant and her husband were

living separate and apart, and while the Defendant

pregnant, she recommenced living with her husband,

apparently with the knowledge that she was pregnant

As noted earlier, this is not a situation that falls under

the conclusive presumption of Family Code Section

7540. Certainly under those circumstance, the

legislature has indicated an intention to

page five D-157628

-41-

place a strong emphasis on family stability, which

would allow parentage to be challenged only in

exceptional circumstances by someone other than the

husband and wife. Since Family Code

Section 7540 applies only “to a child of the wife

cohabiting with her husband", it can be implied

that the legislature perceived a decreased threat to

the family stability if a wife is not cohabiting

with her husband at the time of the conception.

Under these circumstances the court finds

that Plaintiff should be allowed to attempt to

establish that he is the biological father of the minor

child.

THE COURT RULES:

1. Defendant's Motion for Judgment on the Pleadings

is denied.

2. Plaintiffs Motion for Blood Tests is granted. Each

party and the minor child shall participate in

parentage testing through the Long Beach Genetics,.

testing and communicate those arrangements to

counsel for Defendant. Plaintiff shall advance the

costs of the testing subject to allocation at

subsequent hearing or time of trial.

3. Further hearing on Plaintiffs Motion for child

-42-

custody, visitation and attorney's fees and costs

is continued to January 3, 1997 at 7:30 a.m. in Dept

F3.

4. The clerk of the court is directed to mail a copy of

this Ruling on Submitted Matter/Statement

of Decision to counel.

MINUTES OF SUPERIOR COURT

Appendix B

-45-

Filed 4/6/98

IN THE SUPREME COURT OF

CALIFORNIA

DAWN D.,

Petitioner,

THE SUPERIOR COURT

OF RIVERSIDE COUNTY,

Riverside

Respondent;

JERRY K.,

Real Party in Interest.

S$060966

Ct. App. 4/2 E019631

Super. Ct. No. D-157628

In this case we determine whether the presumption

-46-

created by Family Code section 7611' and the standing

Family Code section 7611 provides: “A man

is presumed to be the natural father of a child if he

meets the conditions provided in Chapter 1

(commencing with section 7540) or Chapter 3

(commencing with section 7570 [establishment of

paternity by voluntary declaration]) of Part 2 or in

any of the following subdivisions: [{] (a) He 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. [J] (b) Before the

child’s birth, he 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:

(Y] (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

terminaticn 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, he and

the child’s natural mother have married, or

attempted to marry, each other by a marriage

(continued...)

-47-

rule embodied in section

7630' constitutionally may be applied to preclude an

(...continued)

solemnized in apparent compliance with law,

although the attempted marriage is or could be

declared invalid, and either of the following is true:

[{V (1) With his consent, he is named as the child’s

father on the child’s birth certificate. [{] (2) He is

obligated to support the child under a written

voluntary promise or by court order. [{] (@) He

receives the child into his home and openly holds

out the child as his natural child. [{] (e) If the

child was born and resides in a nation with which the

United States engages in an Orderly Departure

Program or successor program, he acknowledges

that he is the child’s father in a declaration under

penalty of perjury, as specified in Section 2015.5 of

the Code of Civil Procedure. This subdivision shall

remain in effect only until January 1, 1997, and on

that date shall become inoperative.” (Italics added.)

All further statutory citations are to the

Family Code unless otherwise specified.

Section 7630, subdivision (a), provides: “A

child, the child’s natural mother, or a man presumed

to be the child’s father under subdivision (a), (b), or

[J] (1) At any time for the purpose of declaring the

(continued...)

-48-

alleged biological father from establishing his paternity of

a child bor during the mother’s marriage to another man.

The husband in this case is presumed to be the child’s

natural father, as the child was bom during the marriage

(§ 7611, subd. (a)) and he has received the child into his

home and openly holds out the child as his natural child

(§ 7611, subd. (d)). Because, however, the husband and

wife were not cohabiting at the time of conception, the

presumption is not conclusive. (See, e.g., Steven W. v.

Matthew S. (1995) 33 Cal.App.4th 1108, 1114; City and

(...continued) |

existence of the father and child relationship

presumed under subdivision (a), (b), or (c) of

Section 7611. [§] (2) For the purpose of declaring

the nonexistence of the father and child relationship

presumed under subdivision (a), (b), or (c) of

Section 7611 only if the action is brought within a

reasonable time after obtaining knowledge of

relevant facts. After the presumption has been

rebutted, paternity of the child by another man may

be determined in the same action, if he has been

made a party.”

-49-

County of San Francisco v. Strahlendorf (1992) 7

Cal.App.4th 1911, 1915; § 7540.) The alleged biological

father does not meet any of the statutory criteria for

presumed fatherhood. He relies, instead, on an asserted

constitutional liberty interest, protected as a matter of

substantive due process, not to be denied the opportunity

to establish a parental relationship with the child.

We conclude the alleged biological father in this

case has no constitutionally protected liberty interest

defeating California’s statutory presumption favoring the

husband.

FACTS AND PROCEDURAL POSTURE

Our recitation of facts is drawn from the trial

Section 7540 provides: “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.”

-50-

court’s findings and the parties’ pleadings.

Dawn D. and her husband, Frank F., were married

in June 1989. In early January 1995 Dawn separated

from her husband and began living with Jerry K. Dawn

became pregnant the following month. In April 1995 she

moved out of Jerry’s household and returned to her

husband. In August 1995 Jerry filed the complaint in the

present action to establish a parental relationship and

secking eventual visitation with the as-yet unborn child. In

anticipation of his assuming fatherly responsibilities, Jerry

completed a parenting course. On November 9, 1995,

Dawn gave birth to a son, who has resided with Dawn and

Frank ever since that time. Jerry attempted to negotiate

with Dawn and Frank an agreement for child support and

visitation, but the parties have not effectuated such an

agreement.

Dawn moved for judgment on the pleadings. She

argued Jerry could not assert a valid claim to be the father

-51-

of her son, inasmuch as her husband is presumptively the

child’s natural father and California law recognizes only

one natural father for any child. She further contended

Jerry was not within the class of persons granted standing

to seek blood testing under the Family Code. Finally, she

contended the state’s interest in the integrity and

preservation of the family unit outweighed Jerry’s interest

in establishing his paternity of her son.

The trial court denied Dawn’s motion. Relying on

Michael M. v. Giovanna F. (1992) 5 Cal.App.4th 1272

(Michael M.) and Adoption of Kelsey S. (1992) 1 Cal.4th

$16 (Kelsey S.), the court found that because Jerry had

done all he could to demonstrate a commitment to his

parental responsibilities, he had established “due process

rights” that must be balanced against the state’s interest in

enforcing the statutory presumption in favor of Frank.

The trial court noted the state’s continuing interest in the

welfare of the child and in family stability, an interest best

-52-

exemplified in the conclusive presumption contained in

section 7540, which allows parentage to be challenged by

someone other than the husband or wife only in

however, that the inapplicability of section 7540 in this

case supports an inference “the [Ljegislature perceived a

decreased threat to the family stability if a wife is not

cohabiting with her husband at the time of the conception.”

The court therefore concluded Jerry should be permitted to

try to establish he is the child’s biological father and, to

that end, granted Jerry’s motion for blood testing.

Dawn petitioned the Court of Appeal, secking a

stay of further proceedings and a writ of mandate to

compel the trial court to vacate its order denying her

motion for judgment on the pleadings and enter a new

order granting the motion. The Court of Appeal invited

Jerry to file a response and notified the parties that unless

good cause were shown it might issue a peremptory writ in

-53-

the first instance. (See Palma vy. U. S. Industrial

Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) After

consideration of the parties’ responsive papers, the Court

of Appeal summarily denied the petition.

We granted Dawn’s petition for review, directed

respondent court to show cause before this court why the

relief sought in the petition for writ of mandate should not

be granted, and stayed all proceedings in the superior court

pending final determination of this cause.

DISCUSSION

The Uniform Parentage Act, section 7600 et seq.

(the Act), provides the framework by which California

courts make paternity determinations. (§ 7610, subd. (b).)

Under section 7611 of the Act, a man is presumed the

natural father of a child born during, or within 300 days

after the termination of, his marriage to the child’s mother.

(§ 7611, subd. (a).) He also attains the status of presumed

father if he receives the child into his home and openly

holds out the child as his natural child. (§ 7611, subd.

(d).) By either of these provisions, Dawn’s husband,

Frank, is presumed the father of the child involved in this

litigation.’ Jerry, by contrast, meets none of the statutory

marnied nor attempted to marry Dawn, nor, despite his

considerable efforts to assert parental rights, has he

actually received the child into his home. (§ 7611; see

Kelsey S., supra, 1 Cal.4th 816, 826-830 [declining to

Had Frank and Dawn been cohabiting at the

time of the child’s conception (see, e.g., Steven W.

v. Matthew S., supra, 33 Cal.App.4th 1108; City

and County of San Francisco v. Strahlendorf,

supra, 7 Cal.App.4th 1911), Frank’s paternity would

be “conclusively” presumed (§ 7540). Although the

presumption arising from the birth of a child to a

wife cohabiting with her husband is denominated

“conclusive,” in fact the presumption is subject to

challenge under certain circumstances not relevant

here. (See §§ 7540, 7541, subds. (b), (c).)

-55-

recognize doctrine of constructive receipt of child into

man’s home].)

The presumptions arising under section 7611 are

rebuttable presumptions affecting the burden of proof and

may be rebutted in an appropriate action by clear and

convincing evidence. (§ 7612, subd. (a).) The Act,

however, restricts standing to challenge the presumption of

a husband's patemity to the child, the child’s natural

mother, or a presumed father. (§ 7630, subd. (a); cf.

§ 7631.)' The Act thus precludes Jerry from bringing

As noted (see fn. 2, ante), section 7630, .

subdivision (a), grants standing only to the child, the

child’s mother, or a man presumed to be the child’s

father as a result of his marriage to the child’s

mother to bring an action to declare the existence or

nonexistence of the father and child relationship

presumed as a result of the mother’s marriage to the |

presumed father. Thus, even if Jerry had himself

become a presumed father under subdivision (d) of

section 7611 by receiving and acknowledging the

child, subdivision (a) of section 7630 would not

(continued...)

-56-

(...continued)

confer on him standing to challenge the paternity of

another whose presumed fatherhood was based on

marriage to the child’s mother at the time the child

was born.

Section 7630, subdivision (b), by contrast,

allows “[{a]ny interested party” to bring an action to

determine the existence or nonexistence of the father

and child relationship presumed under subdivision

(d) of section 7611. No reported cases have

interpreted this provision in light of facts similar to

those present here. Arguably Jerry would qualify as

an “interested party” for purposes of bringing an

action to establish Frank’s nonpaternity under

subdivision (d) of section 7611. Such an action,

however, whatever its outcome, would appear

neither to affect Frank’s status as a presumed father

under subdivision (a) of section 7611 nor to confer _

on Jerry presumed father status. (See also § 7635,

subd. (b) [in an action to determine the paternity of a

presumed father, the mother, each presumed father,

and any alleged natural father must receive notice

and an opportunity to be heard, and may be made

parties).)

Section 7631 provides in pertinent part:

“Except as to cases coming within [the conclusive

presumption of section 7540], a man not a presumed

father may bring an action for the purpose of

declaring that he is the natural father of a child

(continued...)

-57-

and the child to submit to blood tests to resolve the

question of biological parenthood. (See §§ 7551 [court

may order blood tests in a civil action or proceeding in

which patemity is a relevant fact], 7554 [governing

determinations of paternity based on blood tests].)

Jerry does not argue he has statutory standing to

bring this action; his argument is directed to the

proposition that a biological father has a liberty interest,

protected as a matter of substantive due process, in being

permitted to develop a parental relationship with his

offspring. The Act, he contends, is therefore

(...continued)

having a presumed father under Section 7611, if the

mother relinquishes for, consents to, or proposes to

relinquish for or consent to, the adoption of the

child.” Because Dawn is not relinquishing for or

consenting to her child’s adoption, section 7631 has

no relevance to this case.

-58-

unconstitutional to the extent it deprives him of the

opportunity to establish his parenthood.

A preliminary question is the nature of our inquiry

in the case of a substantive due process challenge to the

Act. California courts have examined substantive due

process claims to a right to establish parenthood on a case-

by-case basis. “As our discussions have indicated, the

reasonableness of a statutory limitation on the right to

offer proof of parentage depeads on circumstances

prevailing in each particular case. Accordingly, a court,

make a preliminary determination, as by offer of proof,

that due process concepts would be offended if the

particular claimant to parentage were denied an

opportunity to prove his claim.” (Jn re Lisa R. (1975) 13

Cal.3d 636, 651, fn. 17; see also Michelle W. v. Ronald

W. (1985) 39 Cal.3d 354, 360.)

Dawn forcefully argues that such a method of

-59-

analysis runs the risk of merely substituting this court’s

policy choices for those of the Legislature. As the United

States Supreme Court recently noted in a different context,

“(W]e ‘ha[ve] always been reluctant to expand the concept

of substantive due process because guideposts for

responsible decisionma),ng in this unchartered area are

scarce and open-ended.’ [Citation.] By extending

constitutional protection to an asserted right or liberty

interest, we, to a great extent, place the matter outside the

arena of public debate and legislative action. We must

therefore ‘exercise the utmost care whenever we are asked

to break new ground in this field,’ [citation], lest the

liberty protected by the Due Process Clause be subtly

transformed into the policy preferences of the members of

this Cour‘, [citation].” (Washington v. Glucksberg (1997)

___ US. ___ [138 L.Ed.2d 772, 787] [upholding, against

Fourteenth Amendment challenge, Washington statute

criminalizing the act of causing or assisting a suicide].)

-60-

We are sympathetic to the democratic motivation

underlying the cautious attitude of the authority just

quoted. Nevertheless, if the judiciary is to fulfill its role in

our tripartite system of government as the final arbiter of

constitutional issues, it cannot hope to escape the tension

challenges raised by those who would seek exceptions

thereto. We can, however, while entertaining such

challenges, seek to hold the tension in check by always

presuming the constitutional validity of legislative acts and

resolving doubts in favor of the statute. (Amwest Surety

Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252.)

The due process clause of the Fourteenth

Amendment to the federal Constitution provides that “[n]o

state shall deprive any person of life, liberty, or property,

without due process of law. . . .” (U.S. Const., 14th

Amend., § 1.) The United States Supreme Court has long

recognized that this provision is not only a guarantee of

61-

procedural due process, but also substantively protects

certain liberties from state infringement except when

justified by the most compelling reasons: “[A]

‘substantive due process’ claim relies upon our line of

cases which interprets the Fifth and Fourteenth

Amendments’ guarantee of ‘due process of law’ to include

a substantive component, which forbids the government to

infringe certain ‘fundamental’ liberty interests at all, no

matter what process is provided, unless the infringement is

narrowly tailored to serve a compelling state interest.”

(Reno v. Flores (1993) 507 U.S. 292, 301-302.) The high

court has recognized that the liberty interests protected by

the due process clause are broader than just the freedom

from physical restraint: “In a long line of cases, we have

held that, in addition to the specific freedoms protected by

the Bill of Rights, the ‘liberty’ specially protected by the

Due Process Clause includes the rights to marry . . .; to

have children . . .; to direct the education and upbringing

-62-

basin aan

of one’s children . . .; to marital privacy . . .; to use

contraception . . .; to bodily integrity . . .; and to

abortion.” (Washington v. Glucksberg, supra,

U.S.___, 138 L.Ed.2d at p. 787, citations omitted.)

The United States Supreme Court has developed

the following methodology for deciding whether an

asserted interest is a fundamental liberty interest protected

by due process: First, the court must make a “‘careful

description’ of the asserted fundamental liberty interest.”

(Washington v. Glucksberg, supra, 138 L.Ed.2d at p.

788.) This “careful description” is concrete and

particularized, rather than abstract and general; thus, in

Washington v. Glucksberg, a case addressing a state

the view the interest in question was ““whether there is a

liberty interest in determining the time and manner of one’s

death’” or a “‘liberty to choose how to die.”” (Jd. at p.

789.) Instead, the high court formulated the interest more

-63-

specifically as “whether the ‘liberty’ specially protected by

the Due Process Clause includes a right to commit suicide

- which itself includes a right to assistance in doing so.”

(Ibid.) Likewise, in a case challenging the policy of the

Immigration and Naturalization Service to place

deportable alien iuveniles in custodial child care rather

than to release them to unrelated adults, the Supreme

Court rejected the contention the right at issue was the

“freedom from physical restraint,”” instead characterizing

it as “the alleged right of a child who has no available |

parent, close relative, or legal guardian, and for whom the |

government is responsible, to be placed in the custody of a |

willing-and-able private custodian rather than of a |

institution.” (Reno v. Flores, supra, $07 U.S. 292, 302.)

Second, the court must determine whether the

asserted interest, as carefully described, is one of our

fundamental rights «nd liberties; central to this

-64-

™ | |

determination is whether the asserted interest finds support

in our history, our traditions, and the conscience of our

people. (Washington v. Glucksberg, supra, 138 L.Ed.2d

at p. 788; Reno v. Flores, supra, 507 U.S. 292, 303.)

Only if a court decides the asserted liberty interest

is a fundamental interest protected by the due process

clause does it weigh the state’s countervailing interest, to

determine whether the latter is sufficiently compelling to

justify the state’s infringement of the liberty interest.

“(Bly establishing a threshold requirement—that a

challenged state action implicate a fundamental right-

before requiring more than a reasonable relation to a

legitimate state interest to justify the action, [this

approach] avoids the need for complex balancing of

competing interests in every case.” (Washington v.

Glucksberg, supra, 138 L.Ed.2d at pp. 788-789.)

Adhering to the United States Supreme Court's

methodology for analyzing substantive due process claims,

-65-

our first step, therefore, is to make a “careful description”

of the asserted liberty interest. (Washington v.

Glucksberg, supra, 138 L.Ed.2d at p. 788.) Carefully

described, the interest for which the alleged biological

father, Jerry, seeks constitutional protection is his interest

in establishing a relationship with his child bom to a

woman married to another man at the time of the child’s

conception and birth.

The next step is to decide whether this interest is |

constitutionally protected. This question has a ready

answer, for the United States Supreme Court has

considered and rejected due process protection for this

interest. In Michael H. v. Gerald D. (1989) 491 U.S.

110, 124-127, four justices, in a plurality opinion by

Justice Scalia, concluded the biological father of a child

born to a woman married to another man had no liberty

satceeat tin easitintslaan Nin eclitiorehiin titite te child

notwithstanding that he had lived with the mother and

-66-

child for almost a year and visited her for an additional

eight months, and the child called him “Daddy.” In

rejecting the liberty interest claim of a man who was not

only the biological father, but also had an actual personal

relationship with the child, the plurality necessarily

rejected as well the position that a biological connection

without any actual personal relationship gives rise to a

protected liberty interest.

Three dissenting justices in Michael H. v. Gerald

D., supra, 491 U.S. 110, concluded the actual personal

relationship between the biological father and his child

was a protected liberty interest. They rejected, however,

the possibility that a biological father having no existing

personal relationship with his child born to a woman

married to another man could have any liberty interest in

establishing a relationship with the child: “[AJlthough an

unwed father’s biological link to his child does not, in and

of itself, guarantee him a constitutional stake in his

-67-

relationship with that child, such a link combined with a

substantial parent-child relationship will do so.” (id. at

pp. 142-143 (dis. opn. of Brennan, J., joined by Marshall,

J., and Blackmun, J.).) The dissenting opinion concluded,

“a mere biological connection is insufficient to establish a

liberty interest on the part of an unwed father. . . .” (Id. at

p. 143, fn 2.) Thus, at least seven of the nine high court

justices in Michael H. expressly rejected the view that an

unwed father’s biological link to a child aione gives rise to

a protected liberty interest. (See also Lehr v. Robertson

(1983) 463 U.S. 248, 259-260 [drawing a “clear

distinction between a mere biological relationship and an

actual relationship of parental responsibility.” (Italics

added}).)

Here, Jerry has never had any personal

relationship with Dawn’s child, only an alleged biological

link with an attempt to negotiate an agreement for child

support and visitation. As explained above, in Michael H.

-68-

v. Gerald D., supra, 491 U.S. 110, the United States

Supreme Court decided that a biological father’s mere

desire to establish a personal relationship with the child is

not a fundamental liberty interest protected by the Due

Process Clause. Accordingly, in this case Jerry’s claim

must fail.

Contrary to our conclusion, the dissent maintains

Jerry does have a protected liberty interest in establishing

a relationship with Dawn’s child. It relies on two United

States Suprenie Court decisions, Michael H. v. Gerald D.,

supra, 491 U.S. 110 and Lehr v. Robertson, supra, 463

U.S. 248, and one of this court’s adoption cases, Adoption

of Kelsey S., supra, 1 Cal.4th 816. The dissent, however,

fails to acknowledge the distinction the high court in

Michael H. vy. Gerald D., supra, 491 U.S. 110, drew

between an unwed father’s interest in maintaining and

preserving an existing parent-child relationship and the

claim, rejected by at least seven justices, that an unwed

-69-

father’s biological connection alone to a child born to a

married woman gives rise to a protected liberty interest in

establishing a relationship with the child.'

Contrary to the dissent in the present case,

that dissenting Justice Brennan in Michael H. v.

Gerald D., supra, 491 U.S. 110, 136, would find the

mother’s marital status “not decisive” (id. at p. 144)

on the question whether the Constitution protects a

biological father’s interest in establishing a

relationship with the child does not mean her marital

status is irrelevant, especially where, as here, the

child was born into the marital family and the alleged

biological father has no actual relationship with the

child. Nor, contrary to the dissent, is Justice

Brennan’s apparent conclusion that the duration of

the biological parent-child relationship is irrelevant

to its constitutional status (id. at p. 144, fh. 3) the

equivalent of a conclusion that its very existence is

likewise irrelevant. Indeed, as we have seen, in a

passage ignored by the dissent in this case, Justice

Brennan found a mere biological connection

insufficient to create a constitutionally protected

liberty interest on the part of the biological father.

(Id. at pp. 142-143, fn. 2 [dis. opn. of Brennan, J.}.)

We do not find Justice Brennan’s conclusion in this

regard necessarily inconsistent with the dissent of

Justice White, which Justice Brennan joined; even if

(continued...)

-70-

Oe ee ee ee ee ee ee

As for Lehr v. Robertson, in that case an unwed

mother, after her child’s birth, married another man who

then adopted the child; the unwed father claimed due

process entitled him to notice and a hearing before the

adoption could occur. (Lehr v. Robertson, supra, 463

U.S. 248, 250.) Like Adoption of Kelsey S., supra, |

Cal.4th 816, Lehr v. Robertson concermed a child born to

two unwed parents, not, as here, a child born into a

marriage. Thus, the adoption cases do not support

protecting as a liberty interest Jerry’s desire to establish a

relationship with Dawn’s child born into a marriage.

Moreover, the high court in Lehr v. Robertson never

clearly decided to what extent the unwed father in that

case had a protected liberty interest in the opportunity to

develop a relationship with his child, nor was it necessary

(...continued)

it were, however, we believe Justice Brennan's

opinion best reflects his own views.

for the court do so. Rather, after deciding that an unwed

father’s desire to establish a relationship with his child

born to an unwed mother was not entitled to the

constitutional protection accorded to existing parent-child

relationships, the court concluded the state had adequately

protected any constitutional interest the father may have

possessed by providing a means for unwed biological

fathers to register with the state and receive notification of

any adoption proceedings involving their children. (Lehr

v. Robertson, supra, 463 U.S. 248, 261-265.) The high

court’s subsequent decision in Michael H. v. Gerald D.,

supra, 491 U.S. 110 imade clear that the biological father

of a child born to a woman married to another man has no

liberty interest in establishing a relationship with the child.

The dissent further suggests Jerry is potentially

liable for financial support of Dawn’s child, but the cases

it cites in support of this startling assertion do not so hold.

In Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232,

Ti»

1235-1238, a biological father was ordered to pay support

only after a judgment of nullity of the mother’s marriage”

with a finding there were no children of the marriage, and

after blood tests had established his paternity. In County

of Orange v. Leslie B. (1993) 14 Cal-App.4th 976, 980-

983, the Court of Appeal declined to apply the conclusive

presumption of a husband’s paternity (former Evid. Code,

§ 621), noting: “Here there is no marital union to disrupt

[by holding the biological father liable for child support].

[Wife] and [Husband’s] brief marriage ended well before

[the child] was born. The three never lived together as a

family unit. [The child] knows [Husband] is not her father

and [Husband] did not know about [the child] until he was

brought into this action, 13 years later.” (Id. at p. 982.)

The dissent cites no

-73-

authority remotely similar to this case, in which the child

was born into a validly existing marital family unit.’

CONCLUSION

Because Jerry cannot establish a constitutionally

protected liberty interest in being allowed to form a

parental relationship with Dawn’s child, application to this

case of sections 7611 and 7630 does not deprive him of

—

Citing Salas vy. Cortez (1979) 24 Cal.3d 22,

34 (Salas), Jerry argues the state has an interest in

an accurate determination of biological paternity.

He takes that decision out of context. In Salas we

concluded procedural due process requires the

appointment of counsel for indigent defendants in

paternity actions prosecuted by the state, balancing

the state’s largely financial interest in denying

counsel against the profound emotional, financial

and legal implications of an erroneous paternity

judgment. (/d at pp. 29-34.) Salas did not address

the situation in the present case, where a man is

actively seeking to establish his paternity of a child

born to a married woman whose husband is

statutorily presumed to be the child’s father and is

fulfilling that role. (See § 7611, subds. (a), (d).)

<4.

due process. The judgment of the Court of Appeal

therefore is reversed, and the cause is remanded to that

court with directions to issue a writ of mandate directing

respondent Superior Court of Riverside County to vacate

its order denying Dawn’s motion for judgment on the

pleadings and to enter a new order granting the motion.

WERDEGAR, J.

WE CONCUR:

GEORGE, C.J.

KENNARD, J.

BAXTER, J.

BROWN, J.

93.

CONCURRING OPINION BY KENNARD, J.

The due process clause of the Fourteenth

Amendment to the federal Constitution, in its

“substantive” aspect, protects fundamental liberties from

state interference absent a compelling reason for the

state’s action. At issue in this case is whether a biological

father’s desire to establish a relationship with his child

born to a woman married to another man is a

constitutionally protected fundamental liberty interest. I

concur fully in the majority’s conclusion that, in the

absence of any existing personal relationship with the

child, a biological father lacks any constitutionally

protected liberty interest. I write separately to note that

This case involves Dawn, Dawn’s child conceived

and bom during her marriage to her husband Frank, and

Jerry, who alleges he is the biological father of Dawn’s

child. Dawn and Frank have had exclusive custody of the

child since birth, and Jerry has established no personal

relationship with the child. Before birth, Jerry brought

suit alleging that he is the biological father of Dawn’s

was born during Dawn’s marriage to Frank, Frank is the

father of Dawn’s child, and it precludes Jerry from

bringing any legal action to challenge that presumption.

(Fam. Code, §§ 7611, subd. (a), 7630, subd. (a).) Jerry

contends nonetheless that he has a liberty interest protected

by the due process clause of the United States Constitution

in establishing a parental relationship with Dawn’s child.

The trial court held that if Jerry was the biological father

of Dawn’s child he had a substantive due process right to

establish a relationship with the child, and on that basis

ordered bicod testing to determine whether Jerry was the

biological father of Dawn’s child. The Court of Appeal

denied without comment Dawn’s petition for a writ of

mandate seeking to overturn the trial court’s ruling.

As the majority opinion explains, in Michael H. v.

Gerald D. (1989) 491 U.S. 110, 124-127, seven justices

of the United States Supreme Court concluded that, in the

absence of any existing personal relationship with the

child, a biological father’s desire to establish a relationship

with his child born to a woman married to another man is

not a fundamental liberty interest protected by the due

process clause of the Fourteenth Amendment to the federal

Constitution. But, even if the high court had not decided

the question in Michael H. v. Gerald D. and we were free

to consider the matter independently, I would still reach

this same conclusion.

As the majority notes, in deciding whether an

asserted interest is one of our fundamental rights and

liberties substantively protected by the due process clause,

a court must examine whether the interest, “ ‘carefully

described,’ ” finds support in our history, our traditions,

and the conscience of our people. (Washington v. 3

Glucksberg (1997) __ U'S._, 117 S.Ct. 2258, 2268-

2269; accord, Reno v. Flores (1993) 507 U.S. 292, 303.)

Here, there is no support in history or our legal tradition

for Jerry’s claim that a biological father without any

actual personal relationship with his child bor to a

woman married to another man has a fundamental right to

establish a relationship with the child. Indeed, history and

tradition are directly to the contrary, for society has

consistently denied to the biological father in these

circumstances any opportunity to establish paternal rights

over the child of another man’s wife. For centuries, there

has existed the presumption of legitimacy: the legal

presumption that a child born during wedlock is the

husband’s issue (absent proof of the husband’s

impotence). (10 Am.Jur.2d (1963) Bastards, § 11, p. 851

[“The principle that children born into wedlock are

presumed to be legitimate is universally recognized.”].)

Lord Coke stated the common law rule: “By the common

law if the husband be within the foure seas, that is within

the jurisdiction of the king of England, if the wife hath

issue, no proofe is to be admitted to prove the child a

bastard, . . . unlesse the husband hath an apparent

impossibilitie of procreation.”' (Coke on Littleton,

Institutes of the Laws of England (1628) 244a [bk. 3, ch.

6, § 399}.)

recognized the presumption of legitimacy. In 1872, our

Legislature codified the presumption as follows: If the

husband and wife were cohabiting at the time of

conception and the husband was not impotent, the

presumption that the husband was the father was

indisputable. (Code Civ. Proc., former § 1962, subd. 5,

enacted 1872, amended by Stats. 1955, ch. 948, § 3, p.

1835, repealed by Stats. 1965, ch. 299, § 110, p. 1363,

eff. Jan. 1, 1967 [“the issue of a wife cohabiting with her

husband, who is not impotent, is indisputably presumed to

be legitimate”]; Estate of Mills, supra, 137 Cal. 298, 301-

304.) A similar provision continues in our current Family

Code. (Fam. Code, § 7540.) If the parents were married

but not cohabiting at the time of conception, the —

presumption could be disproven, but only by a member of

As this court noted long ago, Shakespeare

also restated this presumption: “King John: Sirrah,

your brother is legitimate; Your father’s wife did

after wedlock bear him; And, if she did play false,

the fault was hers; Which fault lies on the hazards of

all husbands That marry wives.” (Shakespeare, King

John, act I, scene 1, quoted in Estate of Mills

(1902) 137 Cal. 298, 301.)

a narrow class of persons. (Civ. Code, former §§ 193,

195, superseded by Evid. Code, former § 661, enacted by

Stats. 1965, ch. 299, § 2, p. 1310, repealed by Stats.

1975, ch. 1244, § 14, p. 3202; accord, Fam. Code,

§§ 7611, subd. (a), 7630, subd. (a).) Most important, the

group of persons with standing to disprove the

presumption has always been limited to designated

members of the marital family and their descendants, and

an alleged biological father has never been permitted to

challenge the paternity of a child born into the marriage of

a woman and another man. (Civ. Code, former §§ 193,

195 [permitting challenges only by the husband, wife, or

their descendants]; Fam. Code, §§ 761i, subd. (a), 7630,

subd. (a) [permitting challenges only by the husband, wife,

or — see also In re Madalina (1917) 174 Cal. 693,

S96 (describing this refusal to permit outsiders to

challenge the presumption of legitimacy as the “rule

prevailing generally in all civilized communities”);

Michael H. v. Gerald D., supra, 491 U.S. 110, 124-126

(plurality opn. of Scalia, J. [discussing history of the

presumption of legitimacy]).)

Nor is there an inconsistency between Michael H.

v. Gerald D., supra, 491 U.S. 110 and our court’s

decisions prohibiting an unwed mother from unilaterally

consenting to an adoption over the objections of an unwed

father who has come forward to assume parental

responsibility. (Adoption of Michael H. (1995) 10

Cal.4th 1043; Adoption of Kelsey S. (1992) 1 Cal.4th

816.) When carefully described, the interest for which

Jerry seeks constitutional protection differs from the

interest at issue in our adoption cases. In those cases, the

child was not bom to a mother who was the wife in an

intact marital family, but to two unwed parents, one of

whom (the mother) wished to terminate her parent-child

relationship. The interest at issue thus was the interest of

an unwed father in establishing a relationship with his

child born to an unwed mother who was terminating her

parent-child relationship. Due process protection for this

interest does not dictate that Jerry’s different interest is

likewise protected by due process.

The common law likewise differentiated between

fathers of children born to unwed mothers and fathers of

children bom into the marriage of a woman and another

man. At common law, the unwed mother of a child had

the right to custody of the child to the exclusion of the

biological father. (Ex Parte Knee (1804) 127 Eng.Rep.

416; Rex v. Soper (1793) 101 Eng.Rep. 156;

10 Am_Jur.2d, supra, Bastards, §§ 60-61, pp. 889-890;

Annot., Right of mother to custody of illegitimate child

(1927) 51 A.L.R. 1507, 1512; accord, Civ. Code, former

§ 200, repealed by Stats. 1975, ch. 1244, § 4, p. 3195;

Guardianship of Smith (1954) 42 Cal.2d 91, 93.) If,

however, the unwed mother died, abandoned or neglected

the child, or gave the child up for adoption, the biological

father had a right to custody of the child. (10 Am.Jur.2d,

supra, Bastards, §§ 61-62, pp. 890-891; accord,

Guardianship of Smith, supra, at p. 93.) Our adoption

cases, in permitting a biological father an opportunity to

establish a relationship with his child by an unwed mother

who was giving the child up for adoption, have not

ventured beyond the common law rule; if that same rule

were applied to decide in this case whether Jerry’s interest

was a protected liberty interest, it would not assist him

because Dawn, the child’s mother, has not given the child

up for adoption or otherwise declined her parental

CONCLUSION

A man who wishes to father a child and ensure his

relationship with that child can do so by finding a partner,

entering into a marriage, and undertaking the

fathers a child with a woman married to another man takes

the risk that the child will be raised within that marriage

and that he will be excluded from participation in the

child’s life. The due process clause of the United States

Constitution provides no insurance against that risk and is

_not an instrument for disrupting the marital family in order

to satisfy the biological father’s unilateral desire, however

strong, to turn his genetic connection into a personal

KENNARD, J.

WE CONCUR:

BAXTER, J.

BROWN, J.

DISSENTING OPINION BY CHIN, J.

I dissent.

The governing decisions of both the United States

Supreme Court and this court establish that a biological

father who promptly comes forward to assume his paternal

ities has a constitutional liberty interest in the

opportunity to develop a relationship with his child, which

the state pay not extinguish without due process of law.

The existence of this interest does not depend on the

marital status of the child’s mother. The trial court in this

case found that Jerry K., who alleges that he is the

biological father of Dawn D.’s son, had done all he could

under the circumstances to demonstrate a full commitment

to his parental responsibilities, and the majority docs not

contest this finding. Thus, assuming he is the child's

biological father, Jerry has a protected constitutional

liberty interest in the opportunity to develop a relationship

due process of law.

In order to determine what process is due, we must

However, on the facts of this case, they do not justify the

state’s categorical presumption that Jerry’s exclusion from

the child’s life is warranted and its refusal to afford Jerry a

hearing on the matter.

In reaching this conclusion, I do not suggest what

the outcome of a hearing should be. A court might very

well find that, under the circumstances, Jerry should have

no contact with the child, even if he is the biological

father. Moreover, the state may constitutionally enact a

rebuttable presumption that this outcome serves the child’s

best interests and may establish hearing procedures to

protect the stability of the marital family. However, as a

matter of due process, the state may nof constitutionally

deprive Jerry of all opportunity to be heard. Therefore, I

I. FACTUAL AND PROCEDURAL BACKGROUND

to the trial court findings, Dawn and

Frank married in June 1989. In early January 1995,

Dawn left Frank and began living with Jerry. In February

1995, Dawn became pregnant. Two months later, in

April, she moved out of Jerry’s home and moved back in

with Frank. In November 1995, Dawn gave birth to a son.

In August 1995, before the child’s birth, Jerry filed

a complaint to establish a parental relationship. The

complaint requested joint legal custody, with physical

custody awarded to Dawn subject to Jerry’s right of

Dawn answered the complaint in September 1995,

asking the court to deny relief. She subsequently moved

for judgment on the pleadings, arguing that Jerry could not

maintain a paternity action because Frank was the child’s

presumed father under Family Code section 7611.' Dawn

asserted that Frank was a presumed father under this

and Frank received the child into his home and openly held

the child out as his own. She also asserted that Jerry

lacked standing to request a blood test to establish

biological paternity.

Jerry opposed the motion and submitted supporting

evidence. According to his declaration, he began a sexual

relationship with Dawn in December 1994, and she moved

in with him in January 1995. She amended her voter

registration to reflect Jerry’s address and had the Post

Office change her mailing address to Jerry’s. Dawn told

All further statutory references are to the

Family Code.

Jerry that she would marry him as soon as she legally

could and that she wanted to start a family. At Dawn’s

request, Jerry submitted to fertility testing. Jerry also

began building an addition to his home in anticipation of

having a child with Dawn. After Dawn became pregnant,

she told people that the baby was Jerry’s, and that she and

Jerry intended to marry. Jerry also submitted declarations

from friends corroborating some of the statements in his

wanted to marry Jerry and have children with him.

of Jerry’s assertions. For example, she denic«| telling Jerry

that she would marry him as soon as she could. She also

denied ever having an intent to change her domicile to

Jerry’s residence. According to Dawn and Frank, they

continued to have contact with each other while she lived

with Jerry.

After argument, the trial court denied Dawn’s

motion. Applying the relevant authorities, it first found

that, if Jerry was the biological father, then he had a

constitutionally protected interest in having an opportunity

to develop a relationship with the child. In reaching this

conclusion, the court stated: “It is hard to imagine what

else [Jerry] could have done under these circumstances to

‘preserve his interest’ . . . and to prove that he has

‘promptly come forward and demonstrated a full

commitment to his parental responsibilities.’ [Jerry] filed

the within action to determine parentage prior to the birth

of the child. Once he learned that the child was born, he

began negotiations with [Dawn] for blood testing, payment

of child support and visitation. It would appear from

correspondence between counsel that an agreement had

been reached for visitation and payment of child support.

It also appears that [Jerry] took a parenting class . . . in

preparation for the birth of the child and his anticipated

parental duties.” The court then balanced Jerry’s interest

against the state’s interest in the child’s welfare and family

stability. It concluded that, under the circumstances, Jerry

should have an opportunity to establish he is the child’s

biological father.

The Court of Appeal summarily denied Dawn’s

petition for writ of mandate. We then granted Dawn’s

II. DISCUSSION

A. Jerry Has a Constitutionally Protected Interest

Constitutional due process protections “apply only

to the deprivation of interests encompassed by the

Fourteenth Amendment's protection of liberty and

property.” (Board of Regents v. Roth (1972) 408 U.S.

564, 569 (Roth).) Accordingly, the first step in analyzing

a due process claim is to determine whether “the interest is

within the Fourteenth Amendment’s protection of liberty

and property.” (Id. at p. 571.) We must “begin the

inquiry with a determination of the precise nature of the

private interest that is threatened by the State. [Citation.]}

properly evaluate the adequacy of the State’s process.

[Citation.]” (Lehr v. Robertson (1983) 463 U.S. 248, 256

(Lehr).) Thus, “we are faced with . . . a familiar two-part

inquiry: we must determine whether [Jerry] was deprived

of a protected interest, and, if so, what process was his

due.” (Logan v. Zimmerman Brush Co. (1982) 455 U.S.

422, 428.)

the first issue, applying the decisions of

tus Wahine Meena Claes dc anen, [continde

Jerry has a constitutional iiberty interest in the opportunity

to develop a relationship with Dawn’s child, assuming he

is the child’s biological father. The high court has

addressed the constitutional rights of unwed fathers

several times. In Michael H. v. Gerald D..(1989) 491

U.S. 110 (@iichael H.), the high court considered the

constitutionality of a California statute providing that

“ ‘the issue of a wife cohabiting with her husband, who is

not impotent or sterile, is conclusively presumed to be a

bas

child of the marriage.’” (id. at p. 117 (plur. opn. of

Scalia, J.).) In Michael H., during the first year of the

" child’s life, she and her mother lived with the alleged

natural father for two to three months, and he held her out

as his child. The mother, with the child, then left the

attempts. He then filed a filiation action to establish

paternity and visitation rights. Nine months later, the

father. For the next eight months, when he was in town,

he lived with the mother and her child and held the child

out as his daughter. The mother then left the alleged

natural father and reconciled with her husband. The

rights. (Michael H., supra, 491 U.S. at pp. 113-115

(plur. opn. of Scalia, J.).)

There was no majority opinion in Michael H.

Justice Scalia, writing for the plurality, found that the

alleged natural father had no “constitutionally protected

right” under the circumstances. (Michael H., supra, 491

US. at p. 129, fn. 7 (plur. opn. of Scalia, J.).) However,

Justice Stevens, who provided the fifth vote to uphold the

statutory scheme, expressly refused to endorse this

conclusion. Although concurring in the judgment, he

disagreed with the plurality’s rejection of “the possibility

that a natural father might ever have a constitutionally

protected interest in his relationship with a child whose

mother was married to, and cohabiting with, another man

at the time of the child’s conception and birth.” (/d. at p.

i33 (conc. opn. of Stevens, J.).) Indeed, he was “willing

to assume for the purpose of deciding [the] case that [the

alleged natural father’s] relationship with [the child] [was]

strong enough to give him a constitutional right to try to

convince a trial judge that (the child’s] best interest would

be served by granting him visitation rights.” (Jbid.)

However, Justice Stevens found the statutory scheme

“consistent with the Due Process Clause” because he was

“convinced that the trial judge had the authority under

state law both to hear [the alleged natural father’s] plea for

visitation rights and to grant him such rights if [the

child’s] best interests so warranted... .” (id. at p. 136

(conc. opn. of Stevens, J.).)

Justices White and Brennan filed separate dissents.

In his dissent, Justice White, joined by Justice Brennan,

found that the alleged natural father had “a liberty interest

that cannot be denied without due process of the law .. . .”

(Michael H., supra, 491 U.S. at p. 157 (dis. op. of

White, J.).) Justice White cited the court’s prior cases

recognizing the liberty interest of a natural father in his

relationship with his child, noting that none of those cases

indicated “that the father’s rights were dependent on the

marital status of the mother or biciogical father.” (Jbid.)

The “basic principle” is that “an unwed father who has

demonstrated a sufficient commitment to his patemity by

way of personal, financial, or custodial responsibilities has

a protected liberty interest in a relationship with his child.”

(id. at pp. 157-158, fn. omitted (dis. opn. of White, J.).)

Justice White stressed that the natural father “ha[d]

since the very time of the child’s birth.” (Jd. at p. 159

(dis. opn. of White, J.).) He also noted a previous high

court decision suggesting that states “must provide a

biological father of an illegitimate child the means by

which he may establish his paternity so that he may have

the opportunity to develop a relationship with his child.”

(Ibid.) Quoting Lehr, supra, 463 U.S. at page 261,

Justice White explained: “ “When an unwed father

demonstrates a full commitment to the responsibilities of

parenthood by “com[ing] forward to participate in the

rearing of his child” [citation], his interest in personal

the Due Process Clause.’ [Citation.]” (Michael H.,

supra, 491 U.S. at p. 160 (dis. opn. of White, J.).)

Justice Brennan, in a dissent joined by Justices

Marshall and Blackmun, also found that the alleged

natural father had a constitutional “liberty interest in his

relationship” with the child. (Michael H., supra, 491 US.

at p. 136 (dis. opn. of Brennan, J.).) Like Justice White,

Justice Brennan explained that “marriage is not decisive in

the parental relationship under consideration.” (id. at p.

144 (dis. opn. of Brennan, J.).) Also like Justice White,

Justice Brennan quoted Lehr, supra, 463 U.S. at page

261, in declaring that the interest of an unwed father in

protection he “ ‘demonstrates a full commitment to

the responsibilities of parenthood by “com{ing] forward to

participate in the rearing of his child... .”"” (Michael

H., supra, 491 US. at p. 143 (dis. opn. of Brennan, J.).)

Summarizing the “common ground shared by a majority

of” the high court, Justice Brennan explained: “Five

Members of the Court refuse to foreclose ‘the possibility

that a natural father might ever have a constitutionally

protected interest in his relationship with a child whose

mother was married to, and cohabiting with, another man

at the time of the child’s conception and birth.”

[Citations.] Five Justices agree that the flaw imhering in a

conclusive presumption that terminates a ituti

interest without any hearing whatsoever is a

one. [Citations.] Four Members of the Court

agree that [the alleged natural father] has a liberty interest

in his relationship with [the child] [citations], and one

assumes for purposes of this case that he does [citation].”

(Michael H., supra, 491 U.S. at p. 136, original italics

(dis. opn. of Brennan, J.).)

Lehr, the decision that both Justices Brennan and

White quoted in their Michael H. dissents, is perhaps even

more instructive on the issue before us. There, an alleged

natural father sought to overtum an order of a New York

state court granting a petition for adoption of a child by

the mother’s husband. The mother had married her

husband eight months after the child’s birth. (Lehr, supra,

463 U.S. at p. 250.) The adoption petition was filed when

the child was two years old. (Jbid.) During the child’s

mother and child or provided them with financial support.

(id. at p. 252.) The alleged natural father was not sent

notice of the adoption proceeding and learned of it only

four days before a court granted the adoption petition. (/d.

at pp. 252-253.) In seeking to overturn the adoption

order, he aryjued that the state had impermissibly

extinguished his constitutional liberty interest in the

potential relationship with his child without due process of

law. (Ud. at p. 255.)

Although the high court affir aed the adoption order,

its reasoning indicates that the alleged natural father had a

constitutional liberty interest that entitled him to duc

process, despite his initial lack of effort to have contact

with the child. In the first part of its opinion, the court

“consider[ed] the nature of the interest in liberty for which

{the alleged natural father] claims constitutional protection

....” (Lehr, supra, 463 U.S. at p. 256.) The court

is that it offers the natural father an app<<tunity that no

other male possesses to develop a relationship with his

offspring. If he grasps that opportunity and accepts some

measure of responsibility for the child’s future, he may

enjoy the blessings of the parent-child relationship and

make uniquely valuable contributions to the child’s

development. If he fails to do so, the Federal Constitution

will not automatically compel a state to listen to his

opinion of where the child’s best interests lic.” (Id. at p.

262, fn. omitted.) The court noted that the alleged natural

or financial relationship with [the child], and he did not

seek to establish a legal tie until after she was two years

old.” (Ibid., fn. omitted.) Despite this lack of effort, the

court stated that it had to determine whether New York’s

statutes “adequately protected (the alleged natural

father’s] opportunity to form such a relationship.” (/d. at

p. 263, italics added.)

The court then considered, and found

constitutionally adequate, the procedures New York

afforded natural fathers. Under the statutory scheme, any

man who filed with the state’s “putative father registry” or

who fell within certain listed classes of possible unwed

fathers was entitled to notice of any adoption proceeding

and an opportunity to present evidence regarding the

child’s best interests. (Lehr, supra, 463 U.S. at pp. 251-

252 & fn. 5.) According to the high court, “filf tits

scheme were likely to omit many responsible fathers, and

if qualification for notice were beyond the control of an

interested putative father, it might be thought procedurally

inadequate.” (Jd. at pp. 263-264.) However, the statutory

scheme “adequately protected” the alleged natural father’s

“opportunity to establish a relationship with” his child

because “the right to receive notice was completely within

{his] control. By mailing a postcard to the putative father

registry, he could have guaranteed that he would receive

notice of any [adoption] proceedings . . . .” (Id. at p. 264.)

As this discussion demonstrates, the high court in

Lehr concluded that the alleged natural father had a

constitutional liberty interest in the opportunity to develop

a relationship with his child, even though he had made no

effort to establish or cultivate a relationship with her

during the first two years of her life. This conclusion is

apparent both from the language of the court’s opinion,

which I have set forth above, and from the very fact that

the court proceeded to the second part of the due process

analysis, determining the constitutional adequacy of the

state procedures. Had it found that the alleged natural

father had no constitutional liberty interest, the court

would not have moved on to this second step.

In Adoption of Kelsey S. (1992) 1 Cal.4th 816

(Kelsey S.), we reached precisely this interpretation of

Lehr. There, we considered the constitutional rights of

Rickie M., a biological father who did not achieve the

status of a presumed father under California law in part

because the child’s mother, a court order, and prospective

adoptive parents thwarted his attempts to receive the child

into his home. (Kelsey S., supra, 1 Cal.4th at p. 825.)

More specifically, we had to determine the

constitutionality of a statutory scheme that permitted

adoption of Rickie’s biological child by third parties

without Rickie’s consent. (/d. at pp. 824-825.) Applying

addressed the nature of Rickie’s asserted interest, “guided”

by the high court’s decisions “dealing with the rights of

unwed fathers.” (Id. at p. 830.) After observing that the

high court in Lehr “recognized the uniqueness of the

biological connection between parent and child,” we

concluded: “Lehr can fairly be read to mean that a father

need only make a reasonable and meaningful attempt to

establish a relationship [with his natural child], not that he

must be successful against all obstacles.”' (Kelsey S.,

The majority asserts that the high court in

Lehr, supra, 463 U.S. 248, “never clearly decided to

what extent the unwed father in that case had a

protected liberty interest in the opportunity to

develop a relationship with his child... .” (Maj.

opn., ante, at p. 13.) As I have demonstrated, and

as we explained in Kelsey S., supra, 1 Cal.4th 816,

the high court in Lehr clearly did decide that the

natural father had some constitutionally protected

opportunity interest, even if it did not explain the full

(continued...)

supra, | Cal.4th at p. 837.) Describing Michael H., we

stated: “[I}t is clear that even in the extreme

circumstances of that case—the mother being married to

and living with her husband, who was not the child’s

biological father—a majority of the justices were

solicitous of the rights of unwed biological fathers. For

them, the determinative factor was whether a biological

father has attempted to establish a relationship with his

child.” (Kelsey S., supra, | Cal.4th at p. 837, italics

added.) More generally, we extracted from the high court

decisions “one unifying and transcendent theme .... The

and worthy of constitutional protection if the father grasps

the opportunity to develop that biological connection into a

full and enduring relationship.” (Jd. at p. 838.)

Ultimately, we concluded that “a biological father has a

constitutionally cognizable opportunity interest in

developing a relationship with his child.” (Id. at p. 844.)

“If an unwed father promptly comes forward and

demonstrates a full commitment to his parental

financial, and otherwise—his

federal constitutional right to due process prohibits the

termination of his parental relationship absent a showing

of his unfitnéss as a parent.” (Id. at p. 849.)

Under these decisions, if Jerry is the child’s

biological father, then he has a constitutional liberty

interest in the opportunity to develop a relationship with

his child. As I have previously noted, the trial court found

“fijt . . . hard to imagine what else [Jerry] could have done

under these circumstances to ‘preserve his interest’ . . .

and to prove that he has ‘promptly come forward and

demonstrated a full commitment to his parental

responsibilities.’ ” The majority does not challenge this

(...continued)

“extent” of that right.

—_—_ ee ae ea aS

finding, and independently finds that Jerry went to

“considerable efforts to assert parental rights.” (Maj.

opn., ante, at p. 6.) Thus, Jerry has done significantly

more to assume his paternal responsibilities than did the

alleged natural father in Lehr. If the alleged natural father

in Lehr, who made no effort to establish a relationship

with his child during the first two years of her life, had a

constitutionally protected liberty interest in the opportunity

to develop a relationship with his child—and the United

States Supreme Court held that he did—then surely Jerry,

who has been trying since before the birth of Dawn’s child

to assume parental responsibilities, has an interest at least

as great, assuming he is the natural father. Therefore, the

interest Jerry asserts in this case is part of the liberty that

the due process clause protects.

B. The Majority Ignores Kelsey S. and

Misinterprets the Separate Opinions in

Michael H.

In concluding that Jerry has no constitutional liberty

interest on the facts of this case, the majority relies

exclusively on the high court’s decision in Michael H..,

supra, 491 U.S. 110. The majority asserts that at least

ante, at p. 12.) It maintains that my analysis “fails to

acknowledge the distinction the high court in Michael H.

. drew between an unwed father’s interest in

maintaining and preserving an existing parent-child

relationship and the [rejected] claim . . . that an unwed

father’s biological connection alone to a child born to

married woman gives rise to a protected liberty interest in

establishing a relationship with the child.” (Maj. opn.,

ante, at p. 13, original italics.) For several reasons, the

majority errs.

First, the majority has mischaracterized my position.

I would not, as the majority suggests, hold that “an unwed

father’s biological connection alone to a child bom to a

married woman gives rise to a protected liberty interest in

establishing a relationship with the child.” (Maj. opn.,

ante, at pp. 12-13, italics added; see also id. at fn. 6.)

Rather, as both Justice Brennan and Justice White wrote

in Michael H., 1 would hold that “ ‘[wJhen an unwed

father demonstrates a full commitment to the

responsibilities of parenthood by “comf{ing] forward to

participate in the rearing of his child,” . . . his interest in

protection under the Due Process Clause.’ ” (Michael H.,

supra, 491 U.S. at p. 143 (dis. opn. of Brennan, J.); id. at

p. 160 (dis. opn. of White, J.).)

Second, the majority is incorrect in asserting that a

majority of the high court in Michael H. held that a

natural father has a liberty interest only where he

successfully establishes a substantial relationship with his

child. In fact, none of the justices in Michael H. adopted

that position To begin with, Justice Scalia’s plurality

opinion in Michael H. expressly rejected the very

distinction the majority now purports to draw, ic., that

creation of a natural father’s liberty interest depends on

the existence of “an established parental relationship.”

(Michael H., supra, 491 U.S. at p. 123.)

Moreover, the majority errs in reading Justice

Brennan’s Michael H. dissent as concluding that a liberty

interest arises only if the natural father successfully

establishes an “existing personal relationship” with his

child. (Maj. opn., ante, at p. 11, original italics.) In so

from Justice Brennan’s opinion that I have quoted above,

which focuses on whether the natural father

“ ‘demonstrates a full commitment to the responsibilities

of parenthood by “com[ing] forward to participate in the

rearing of his child”... ."” (Michael H., supra, 491 U.S.

at p. 143 (dis. opn. of Brennan, J.) Furthermore, in

relying exclusively on another statement in Justice

Brennan’s dissent, the majority fails to appreciate the.

factual context of the Michael H. case. As the majority

notes (maj. opn., ante, at p. 11), Justice Brennan observed

in Michael H. that a liberty interest arises whena ti

biological link is “combined with a substantial parent-child

relationship.” (Michael H., supra, 491 U.S. at p. 142

(dis. opn. of Brennan, J.) However, this statement, unlike

the broader statement that I have quoted above, simply

reflected the facts of the case, which were that the natural

father had established a relationship with his child.: Thus,

contrary to the majority’s assertion, nothing in Justice

Brennan’s dissent even suggests, let alone “expressly”

holds (maj. opn., ante, at p. 12), that a natural father’s

constitutional liberty interest arises only where he

successfully establishes a relationship with his child.

On the contrary, to the extent Justice Brennan, and

those who joined his dissent, expressed an opinion in

Michael H. regarding the constitutional rights of a natural

father in circumstances sperifically like Jerry’s, their

views are consistent with, nc contrary to, mine. In finding

that the natural father in Michael H. had a constitutional

liberty interest, Justice Brennan emphasized that the

natural father “ha[d] from the beginning sought to

(Michael H., supra, 491 U.S. at p. 143 Gis. opn. of

Brennan, J.).) Although he also noted at one point that the

natural father had “lived with [the child] as her father”

(ibid.), later in his opinion, Justice Brennan rejected the

plurality’s suggestion “that the length of time that [the

natural father] and [the child] lived together is relevant to

the question whether they have a liberty interest in their

relationship with each other.” (Jd. at p. 144, fn. 3 (dis.

opn. of Brennan, J.).) Justice Brennan’s determination

that this factor is irrelevant is inconsistent with the

majority’s conclusion that Justice Brennan would have

recognized a constitutional liberty interest only where a

On the other hand, it is consistent with my conclusion and

the conclusion we reached in Kelsey S., supra, 1 Cal.4th

816, that, under the high court cases, a i

comes forward to participate in child rearing.

The third, and perhaps most compelling, reason that

I disagree with the majority is that its conclusion and its

ion of Michael H., supra, 491 U.S. 110, are

directly contrary to our decision in Kelsey S. As I have

explained, in Kelsey S., we held that “a biological father

has a constitutionally cognizable opportunity interest in

developing a relationship with his child.” (Kelsey S,,

supra, t Cal.4th at p. 844, italics added.) Thus, “{i}f an

unwed father promptly comes forward and demonstrates a

full commitment to his parental responsibilities . . . his

federal constitutional right to due process prohibits the

termination of his parental relationship absent a showing

of his unfitness as a parent.” (Jd. at p. 849.) In reaching

this conclusion, we interpreted Lehr, supra, 463 U.S. 248,

as holding “that a father need only make a reasonable and

meaningful attempt to establish a relationship, not that he

must be successful against all obstacles.” (Kelsey S.,

supra, 1 Cal 4th at p. 837.) We also observed that, for a

majority of the high court in Michael H., “the

determinative factor” was not whether a substantial

relationship exists, but “whether a biological father has

attempted to establish a relationship with his child.”

(Kelsey S., supra, 1 Cal.4th at p. 837, italics added.)

Thus, in Kelsey S., we expressly rejected both the

majority's analysis and its current interpretation of the

separate opinions in Michael H.

inconsistency. Instead, it virtually ignores Kelsey S.,

summarily noting that it was an “adoption case[]” that

“concerned a child born to two unwed parents, not, as

here, a child born into a marriage.” (Maj. opn., anfe, at p.

13.) Thus, the majority's refusal to follow Kelsey S. in

this case tums solely on the marital status of the child’s

mother, Dawn.

The most obvious flaw im the majority’s position

is its failure to explain why the fact that Kelsey S. involved

reading in Kelsey S: of Michael H., supra, 491 U.S. 110.

As I have just noted, in Kelsey S., we concluded that “the

determinative factor” for “a majority of the justices” in

Michael H. was not.whether a substantial relationship

exists, but “whether a biological father has attempted to

establish a relationship with his child.” (Kelsey S., supra,

1 Cal.4th at p. 837, italics added.) That Kelsey S. was an

adoption case has no bearing on this conclusion Thus,

even were I to agree with the majority that Dawn’s marital

status is relevant to the existence of Jerry’s constitutional

right, unlike the majority, I would not feel free to ignore

our pronouncements in Kelsey S. regarding the majority

view in Michael H., which, of course, was not an adoption

case but was a case similar to the one before us.

In any event, I cannot adopt the majority’s implicit

conclusion that the existence of a natural father’s

constitutional right tums on the marital status of the

mother. Nothing in our analysis in Kelsey S. supports

drawing a distinction on this basis. On the contrary, in

there determining the constitutional rights of a natural

father, we relied on ail of the high court cases addressing

this question, whether they involved a single mother (c.g.

Lehr, supra, 463 U.S. 248) or a married one (¢.g.,

Michael H., supra, 491 U.S. 110). (Kelsey S., supra, |

Cal.4th at pp. 830-839.) Thus, nothing in Kelsey S.

supports the majority’s attempt to limit the relevance of

that decision to the adoption context.

Moreover, the majority’s focus on the mother’s

marital status is inconsistent with the majority view in

Michael H. There, Justice White flatly declared that,

under the high court cases, a natural father’s rights are not

“dependent on the marital status of the mother or

biological father.” (Michael H., supra, 491 U.S. at p. 157

(dis. opn. of White, J.).) Similarly, Justice Brennan, also

that “marriage is not decisive in answering the question

under consideration.” (Id. at p. 144 (dis. opn. of Brennan,

J.).) Justice Stevens “dfid] not agree” with the plurality’s

view that a natural father could never “have a |

constitutionally protected interest in his relationship with a

child whose mother was married to, and cohabiting with,

another man at the time of the child’s conception and

birth.” (id. at p. 133 (conc. opn. of Stevens, J.).) In

rejected the majority’s view that, simply because a mother

is married, a natural father does not have a constitutional

liberty interest in a relationship with his child. Thus, a

majority of the high court in Michael H. declined to make

the existence of a natural father’s constitutional right

depend on the very factor the majority now cites in

refusing to follow Kelsey S., supra, 1 Cal.4th 816.

Furthermore, inherent in the majority’s conclusion

that the mother’s marital status is determinative of the

natural father’s constitutional rights is a balancing of

interests that shouid be irrelevant to determining the

existence of a constitutional right. To hold, as does the

majority, that the existence of Jerry’s constitutional right

depends on Dawn’s marital status is “to say that whether

[Jerry] . . . hafs] a liberty interest varies with the State’s

interest in recognizing that interest, for it is the State’s

interest in protecting the marital family-—and not [Jerry]

and (the child’s] interest in their [potential] relationship

with each other—that varies with the status of [Dawn] and

[Frank’s] relationship.” (Michael H., supra, 491 US. at

p. 146 (dis. opn. of Brennan, J.).) However, under the

“established framework” for analyzing due process claims,

we should not “consider the State’s interest in limiting the

extent of the procedures that will attend the deprivation of

—_

[a constitutional] interest” until after we determine that

“the person claiming constitutional protection has an |

interest that the Constitution recognizes... .” (Michael

H., supra, 491 US. at p. 145 (dis. opn. of Brennan, J.);

see also Roth, supra, 408 USS. at pp. 570-571 [“weighing

process” is “part of any determination of the form of

hearing” required, but “to determine whether due process

requirements apply in the first place, we must look not to

the “weight” but to the nature of the interest at stake”].)

Accordingly, in concluding that Jerry has no constitutional

right, the majority necessarily, and improperly, has

balanced his interests against the state’s countervailing

interests.

As Justice Brennan explained in Michael H., the

majority’s emphasis on Dawn’s marital status “conflates

the question whether a liberty interest exists with the

question what procedur's may be used to terminate or

curtail it.” (Michael H., supra, 491 U.S. at p. 145 (dis.

opn. of Brennan, J.).) We should not “look{] at the

relationship that the unwed father secks to disrupt, rather

than the one he seeks to [develop,] in determining whether

he has a liberty interest in his [potential] relationship with

his child. To do otherwise is to allow the State’s interest

in [preventing] the relationship to play a role in defining

the ‘liberty’ that is protected by the Constitution.” (Jbid.)

“It is a bad day for due process when the State’s interest in

(preventing] a parent-child relationship is reason to

conclude that [the opportunity to develop] that relationship

is not part of the ‘liberty’ protected by the Fourteenth

Amendment.” (Jd. at pp. 146-147 (dis. opn. of Brennan,

J.); see also State ex rel. Roy Allen S. v. Stone (W.Va.

1996) 474 S.E.2d 554, 563 (Stone) [mother’s preexisting

marriage to another man “alter(s} thy: nature and weight of

the State’s interests,” not the existesce of the natural

father’s liberty interest].) In short, the majority identifies

no valid basis for refusing to follow Kelsey S., supra, |

Cal.4th 816.'

After announcing that its task is to determine

whether the interest Jerry asserts “finds support m our

history, our traditions, and the conscience of our people”

(maj. opn., ante, at p. 10), the majority makes no

choosing to rely exclusively on Michael H., supra, 491

US. 110. As I have demonstrated, and as we held in

Kelsey S., supra, 1 Cal.4th at page 837, Michael H. docs

not support the majority’s conclusion. Moreover, had the

majority independently considered the question, it would

have found that in at least 20 states alleged natural fathers

in circumstances similar to Jerry’s are entitled to some

form of a hearing before they are forever excluded from

the lives of their biological children.” This fact further

; Justice Kennard’s concurring opinion, which

also refuses to follow Kelsey S. because of Dawn's

marital status (conc. opn. of Kennard, J., ante, at D.

4), is similarly unpersuasive.

, See R.A.J. v. L.B.V. (Ariz.Ct.App. 1991)

817 P.2d 37; Willmon v. Hunter (Ark. 1988) 761

S.W.2d 924; R. McG. v. J. W. (Colo. 1980) 615

P.2d 666; Weidenbacher v. Duclos (Conn. 1995)

661 A.2d 988; Green v. Long (Del. Fam.Ct. 1988)

547 A.2d 630; Johnson v. Studley-Preston (Idaho

1991) 812 P.2d 1216, 1219-1221; Simcox v. Simcox

(Ill. 1989) 546 N.E.2d 609, 612; In re Marriage of

Slayton (Ill.App.Ct. 1996) 660 N.E.2d 562; K-S. v.

RS. (ind. 1996) 669 N.E.2d 399; Smith v. Jones

(La.Ct.App. 1990) 566 So.2d 408; Finnerty v.

Boyett (La.Ct.App. 1985) 469 So.2d 287; Turner v.

Whisted (Md. 1992) 607 A.2d 935; In re Paternity

(continued...)

100

demonstrates the unsoundness of the majority’s

conclusion.'

(...continued)

of B.J.H. (Minn.Ct.App. 1998) 573 N.W.2d 99;

Kelly v. Cataldo (Minn.Ct.App. 1992) 488 N.W.2d

822, 826-828; Ivy v. Harrington (Miss. 1994) 644

So.2d 1218; J. M. L. v. C. L. (Mo.Ct.App. 1976)

536 S.W.2d 944, 945-947; Matter of Paternity of

Adam (Mont. 1995) 903 P.2d 207; ALF. v. NH.

(N.J. Super.Ct. App.Div. 1991) 599 A.2d 1297; -

Richard Wv. Roberta Y (N.Y. App.Div. 1995) 629

N.Y.S.2d 512; Gorton v. Gorton (N.Y. Fam.Ct.

1984) 475 N.Y.S.2d 767; Gregory v. McLemore

(Okla.Ct.App. 1995) 899 P.2d 1189; In Interest of

J.W.T. (Tex. 1994) 872 S.W.2d 189; McDaniels v.

Carlson (Wash. 1987) 738 P.2d 254; In re Paternity

of T.R.B. (Wis.Ct.App. 1990) 454 N.W.2d 561; see

also C.C. v. A.B. (Mass. 1990) 550 N.E.2d 365,

372, fn. 10 (leaving open possibility of action

“where, due to the actions of the mother, [the

natural father] ha[s] not yet formed a substantial

relationship with the child”); Stone, supra, 474

SE 2d at page 566 (leaving open possibility of

action where natural father “proves that he would

sere in the care of, responsibility for, and support

of the child but for the mother’s repudiation”).

; In her concurring opinion, Justice Kennard

also overlooks this fact in declaring that “society has

consistently denied to the biological father in these

circumstances any opportunity to establish parental

rights over the child of another man’s wife.” (Conc.

(continued...)

101

Finally, in holding that Jerry has no constitutional

liberty interest on the facts of this case, the majority

prevent a natural father from obtaining the benefits of

fatherhood, but the same natural father may not be able to

and demonstrates a full commitment to his parental

(...continued)

opn. of Kennard, J., ante, at p. 3, original italics.)

: The majority correctly notes that Alicia R.

and Leslie B. are factually distinguishable from this

case. (Maj. opn., ante, at p. 14.) However, the

majority ignores the court’s broad declaration in

Leslie B. that the presumption of a husband’s

(continued...)

102

(...continued)

| paternity “cannot be applied” to “protect{] [a natural

) father] from assuming any responsibility for a child

, he fathered.” (Leslie B., supra, 14 Cal.App.4th at p.

980, original italics; see also id. at p. 981

(“presumption was never intended as a financial

prophylactic for men who have affairs with married

: » women”].) The court reasoned that the presumption

applies only where its underlying policies “would be

furthered by [its] application . . . to the facts” of the

, particular case. (Id. at p. 980.) The court noted, for

example, that we refused to apply the presumption

in Lisa R., supra, 13 Cal.3d 636, because, given the

presumed father’s death, the policy of protecting the

family unit could not be served. (Leslie B., supra,

14 Cal. App.4th at p. 981.) Of course, in this case,

we cannot predict how the facts will later develop or

whether a court will some day conclude, based on

those facts, that Jerry is financially liable for Dawn’s

child.

103

C. Due Process Entitles Jerry to a Hearing

The state procedures at issue here extinguish Jerry's

constitutional liberty interest in the opportunity to develop

a relationship with his alleged natural child without

affording him any opportunity to be heard. As we have

explained, “the reasonableness of a statutory limitation on

the right to offer proof of parentage depends on

circumstances prevailing in each particular case.” (Jn re

Lisa R. (1975) 13 Cal.3d 636, 651, fn. 17 (Lisa R) We

must balance Jerry’s constitutional liberty interest against

the state’s “interest in precluding [Jerry] from offering

evidence of parentage ... .” (Id. at p. 650; see also

Michael H. supra, 491 US. at p. 148 (dis. opn. of

Brennan, J.) [due process requires consideration of state’s

“interest in curtailing the procedures accompanying the

termination of a constitutionally protected imterest”].)

Among the factors that influence our determination are

“ ‘the extent to which [Jerry] may be “condemned to suffer

grievous loss,” ’ ” and “the permanency of the threatened

loss.” (Santosky v. Kramer (1982) 455 U.S. 745, 758

(Santosky).)

104

1. Jerry's Interest Is Substantial

As I have already explained, the United States

Supreme Court has considered the nature of a natural

father’s interest in his child several times. In those

decisions, the high court has stressed that “[t]he rights to

conceive and to raise one’s children” are “ ‘essential’ ”

and “ ‘far more precious . . . than property rights’

{citation].” (Stanley v. Illinois (1972) 405 U.S. 645, 651

(Stanley).) In Lehr, describing the “significance” of a

natural father’s “biological connection,” the court

explained: “(I]t offers the natural father an opportunity

that no other male possesses to develop a relationship with

his offspring. If he grasps that opportunity and accepts

some measure of responsibility for the child’s future, he

may enjoy the blessings of the parent-child relationship

and make uniquely valuable contributions to the child’s

development.” (Lehr, supra, 463 U.S. at p. 262, fn.

omitted.) Citing this passage from Lehr, we have

importance of genetic parents’ rights. [Citations.]”

(Johnson v. Calvert (1993) 5 Cal.4th 84, 98-99

(Johnson).)

More generally, in cases involving termination of

parental rights, the high court has stated that a successful

termination action “work{s] a unique kind of deprivation.

[Citations.]” (Lassiter v. Department of Social Services

(1981) 452 U.S. 18, 27 (Lassiter).) In this context, the

court has declared that “a natural parent’s ‘desire for and

right to “the companionship, care, custody, and

management of his or her children” * ” is a “commanding”

interest. (Santosky, supra, 455 U.S. at p. 758.) Ina

termination action, the state attempts “ ‘to destroy

permanently all legal recognition of the parental

” [Citation.]” (LB. v. S.L.J. (1996)

__[117S.Ct. 555, 570] (.L.B.), italics added.) A

ssniilhd caheitian annette i “‘eonateabits

destructi[ve]’ of the most fundamental family relationship.

105

[Citation.]” (id. atp.__ [117 S.Ct. at p. 566].) In short,

“fflew forms of state action are both so severe and so

irreversible.” (Santosky, supra, 455 U.S. at p. 759; see

alsoM.L.B., supra, __US.atp.___ [117 S.Ct. at p.

565] [* ‘[flew consequences of judicial action are so grave

as the severance of natural family ties’ ”].) A termination

decision that “effectively foreclose{s] the possibility” that

a child will “ever know his natural parents” results in a

“loss{] [that] cannot be measured.” (Santosky, supra, 455

US. at pp. 760-761, fn. 11.) “A parent’s interest in the

accuracy and justice of the decision to terminate his or her

parental status is, therefore, a commanding one.

[Citation.}”" (Lassiter, supra, 452 U.S. at p. 27, fn.

___ [117 S.Ct. at p. 570].) Jerry’s interest in this case,

therefore, is substantial. Accordingly, the Legislature’s

refusal to afford him any process cm withstand

constitutional scrutiny only if C=iifornia “has an interest

so powerful that it justifies granting [him] no hearing

before terminating his parental rights.” (Michael H.,

supra, 491 U.S. at p. 154, original italics (dis. opn. of

Brennan, J.).)

; The majority thus errs in discounting Jerry’s

interest in an accurate determination of paternity.

(Mgj. opn., ante, at p. 15, fh. 7.)

106

2. The State's Interests Do Not Justify the Absence

child’s welfare and family stability—are unquestionably

significant, on the facts of this case, they do not justify

extinguishing Jerry’s constitutional liberty interest without

affording him any process. As this court has previously

observed, due process generally requires that an individual

receive “notice and some form of hearing before” the state

deprives him of a protected liberty interest. (Kash .

Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d

294, 308 (Kash).) In some circumstances, important

hearing until after the deprivation. (Jbid.) However, even

in these circumstances, “an opportunity to be heard may

only be postponed, not entirely climinated.”' (Kash,

supra, 19 Cal.3d at p. 308.) In the context of proceedings

to terminate parental rights, the high court has explained:

“[TJhat important liberty interests of the child and its

foster parents may also be affected by a permanent neglect

constitutionally adequate procedures.” (Santosky, supra

Michael H. does not constitute an exception

to this rule. As I have previously explained, in

concurring in the judgment in that case, Justice

Stevens concluded that California’s statutory

scheme was “consistent with the Due Process

Clause” (Michael H., supra, 491 U.S. at p. 136

(conc. opn. of Stevens, J.)) because it afforded the

alleged natural father “a fair opportunity to show

that he [was the child’s] natural father” and that the

child’s “interests would be served by granting him

visitation rights.” (Jd. at p. 135 (conc. opn. of

Stevens, J.).)

107

455 US. at p. 754, fn. 7, original italics.) Similarly, in

this case, that affording Jerry an opportunity to be heard

might affect liberty interests of Dawn, Frank, and the child

procedures.

Indeed, in previous cases involving parental rights,

we have found the state’s legitimate and substantial

interest in the child’s welfare insufficier: to justify

extinguishing a natural parent’s right without a hearing or

categorically impairing that right. In Lisa R., we balanced

state and private interests to determine whether an alleged

natural father could be “denied the opportunity to be heard

in protection of a basic [constitutional] right.” (Lisa R.,

supra, 13 Cal.3d at p. 647.) We concluded that the state’s

legitimate interest in the child’s welfare did not justify

denying the natural father a hearing, noting that a court

had to determine his parental fitness even if he established

his biological patemity. (/d. at pp. 648-650 & fn. 14.)

Similarly, in the case now before us, “it is important to

keep in mind that the question at issue . . . is not whether

[Jerry] should be granted visitation or custody but simply

whether he can take the first step in any such proceeding.”

(Michael H., supra, 491 U.S. at p. 161, fn. 3 (dis. opn. of

White, J.).) Jerry’s constitutional liberty interest “only

entitle[s} [him] to an opportunity to request to invoke his

parental rights; . . . it would remain for [a] court to

determine issues of visitation, custody, etc., based on the

best interests of the child. [Citations.]”' (Stone, supra,

474 S.E.2d at p. 566.)

I refer to the “best interest” standard because

of existing California family law statutes. (See

§ 7637 [judgment in paternity action may address

any matter in child’s “best interest,” including

custody and visitation issues].)

108

In Kelsey S., we again considered the extent to

which the state’s interest in the child’s welfare may justify

categorically impairing a natural father’s constitutional

rights. There, we held that the state may not

constitutionally authorize an adoption over the objection of

a natural father who demonstrates a full commitment to

his parental responsibilities, absent a showing of his

unfitness. (Kelsey S., supra, 1 Cal.4th at p. 821.) In

reaching this conclusion, we rejected the notion that the

state’s mterest in placing the child with an adoptive

couple, rather than with the natural father, justified

adoption without the natural father’s consent. We

explained: “[T]he constitutionally valid objective is the

protection of the child’s well-being. We cannot conclude

in the abstract that adoption is itself a sufficient objective

to allow the state to take whatever measures it deems

appropriate. Nor can we merely assume, either as a

policy or factual matter, that adoption is necessarily in a

child's best interest. This assumption is especially

untenable in light of the rapidly changing concept of

family.” (id. at p. 845, second italics added.)

Here, too, we cannot “merely assume, either as a

policy or factual matter,” that simply because Dawn was

married at the time of the child’s conception and birth,

Jerry’s exclusion from the child’s life “is necessarily in

[the] child’s best interest.” (Kelsey S., supra, 1 Cal.4th at

p. 845.) There may very well be circumstances in which

allowing contact with the natural father will be in the

child’s best interest, even where a presumed father existed

at the time of the child’s birth.' Thus, assuming that Jerry

For example, exclusion of the natural father

may not be in the child’s best interest where the

mother intends to leave ber husband soon after the

(continued...)

109

(See Stanley, supra, 405 U.S. at p. 656 [state may not

justify denying alleged natura! father a hearing by

asserting that unmarried fathers are seldom fit].)

Nor does the state’s interest in family stability

“Not all petitions challenging the paternity of marital

openly lived with Jerry, so Frank “was well aware of the

liaison between [Dawn] and [Jerry].” (Michael H., supra,

491 US. at p. 162 (dis. opn. of White, J.).) Because

Frank probably “already knows the child is not his, (it is)

less likely that the paternity hearing will disrupt an

relationship.” (Michael H., supra, 491 U.S. at p. 120, fn.

1 (plur. opn. of Scalia, J.); see also Michael M. v.

Giovanna F. (1992) 5 Cal.App.4th 1272, 1284 [no threat

to family unity where man and pregnant woman marry

knowing that another man is the unborn child’s biological

father}; In Interest of J.W.T, supra, 872 S.W.2d at p. 197

[state’s interest in family stability diminished given

mother’s choice “ ‘to engage in sexual relations outside of

(...continued)

child’s birth, or where the husband ceases to have

contact with the mother and the child, or is abusive,

or is incarcerated for an extended period.

110

marriage” ”}.) As aiso previously noted, Jerry submitted

evidence that Dawn initially intended to marry him and

raise children with him, and that he took action in

anticipation of these events. In previous cases involving

conflicting claims of parentage, we have given controling

weight to the “acted-on inteution” of the parties to have a

child. VJohnson, supra, 5 Cal.4th at p. 93.) Accordincly,

determining Jerry's custody and visitation request are

adequate to protect the state’s interest in family stability.

(See Stone, supra, 474 S.E.2d at pp. 566-567; see also

Boddie v. Connecticut (1971) 401 U.S. 371, 381 (Roddie)

{complete denial of due process is impermissible where

“alternatives exist” to protect state’s interests}.)

D. The State Has Considerable Discretion Regarding the

Form of Hearing

My conclusion that Jerry has a constitutional right

that entitles him to due process gives rise to the question of

precisely what process is duc. “Due process of law

guarantees ‘no particular form of procedure . . . .” ”

(Mitchell v. W. T. Grant Co. (1974) 416 U.S. 600, 610.)

Rather, as noted, we use “a weighing process” to

determine “the form of hearing required . . . .” (Roth,

supra, 408 U.S. at p. 570, italics omitted.) Thus, “{tjhe

vary, depending upon the importance of the interests

111

S. had a constitutional right that the prospective adoptive

parents did not have. He therefore had a constitutional

priority that the state could not extinguish absent a

showing of unfitness. (Kelsey S., supra, 1 Cal. 4th at p.

849.) Here, Jerry enjoys no constitutional priority. An

exercise of his right necessarily conflicts with the right of

Dawn and Frank to form a family unit and raise the child

as they see fit. (See Stanley, supra, 405 U.S. at p. 651

[due process clause protects the “integrity of the family

unit”].) Moreover, the natural father in Kelsey S. sought

sole custody of the child, i.¢., a unified, although pethaps

single parent, family. By contrast, Jerry secks only legal

custody and visitation. The state has a strong interest in

fostering, at the outset of a child’s life, a unified family

with a single father. Thus, the state’s preference that the

father be the man who is married to the mother rather than

the natural father is not arbitrary or irrational.

Furthermore, although Jerry’s opportunity interest is

significant, it is less weighty than the interest of an

unmarried father who has already formed a relational bond

with the child. (See Lehr, supra, 463 U.S. at p. 262, fn.

18 [father who has played substantial role in child’s

rearing has “greater claim to constitutional protection”

Jerry have the right to some form of process, given the

competing interests, the state has considerable leeway to

build imto that process a preference for the presumed

father as the child’s sole father. Not only may the state

deny the natural father visitation or custody based on the

child’s best interest (see § 7637), it may, for example,

establish a rebuttable presumption that giving sole custody

to the mother and presumed father, and denying any rights

to a natural father who is not the presumed father, best

serves a newborn child’s interests. Moreover, the state has

considerable disc

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