Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. David A. Williams, Judge, Super.Ct. Nos. RFL039133, RFL043112
Daniel W. Rinaldelli for Plaintiff and Appellant and Defendant and Appellant.
Gassner & Gassner and Stephen I. Gassner for Defendant and Respondent.
Samuel R. Wasserson for Intervener and Respondent and Plaintiff and Respondent.
McKinster, J.
Alex M. appeals a judgment denying his petition to establish his paternity of a child, R., and for joint custody and visitation, and finding that James A., the husband of the child’s mother, is the child’s father. We conclude that the court erred in finding that Alex failed to meet his burden of proving that he is the child’s biological father. Nevertheless, we affirm the judgment determining that James A. is the presumed father of R. and denying Alex’s petition for custody or visitation.
FACTS
R. was born to Stephanie A., with whom Alex had had a relationship during a time when Stephanie was divorced. During that time, Stephanie also had an off-and-on relationship with her then ex-husband, James A., who is the father of her two older children and of her two youngest children. James and Stephanie resumed living together near the time of R.’s conception and remarried after his birth. Stephanie maintained that R. was conceived after she terminated her relationship with Alex and after James moved back into the house with her. Alex testified that Stephanie told him before R. was born that the child was his.
After R. was born, and after Alex filed his petition, James and Stephanie obtained a court order nullifying their divorce judgment on the ground that James was never properly served with the final judgment. Because their divorce was later nullified, they maintained that they were legally married at the time of R.’s birth, thus creating a conclusive presumption that James is R.’s natural father. (Fam. Code, § 7540.) (All further statutory citations refer to the Family Code unless indicated otherwise.) The court found, however, that they were divorced at the time of R.’s birth and declined to apply the presumption.
James believed that R. is his biological child. He participated in Stephanie’s prenatal care and in R.’s birth, has at all times since supported and cared for R. and has otherwise treated R. as his natural child. James is listed on the child’s birth certificate as the father. After Alex filed his petition to establish paternity, James signed a voluntary declaration of paternity. James later filed a petition to establish his paternity of R.
Approximately two months after R.’s birth, at Alex’s request, Stephanie and James did a home DNA test which showed that James was in all probability the father. Alex did not participate in that test. Alex still believed he was the father. He filed a petition to establish paternity and obtained a court order for testing. The test results, dated April 21, 2004, showed a greater than 99.99 percent probability that Alex is R.’s father. James did not participate in that test. A second court-ordered test, which was conducted on January 12, 2005, excluded James as R.’s father and showed, again, a greater than 99.99 percent probability that Alex is the father. Both court-ordered tests were conducted by Long Beach Genetics.
Although we refer to it as a “home” test, the samples were collected by Stephanie and mailed to an accredited laboratory in New Mexico for testing.
The report showing that James was excluded as R.’s biological father was not introduced into evidence. However, the parties stipulated that it excluded James as the father and demonstrated that James does not share genetic markers with R. (The record appears to show that only James and Alex entered into that stipulation. However, in her brief on appeal, in which James joined, Stephanie states that “all counsel” joined in the stipulation that James is not the biological father.)
Alex’s expert witness, Dr. Taddie, who was the director and general manager of Long Beach Genetics at the time the court-ordered DNA tests were administered, testified at the trial that the sample submitted for the child in the home DNA test was genetically inconsistent with the sample submitted for the child in the court-ordered tests. Because strict procedures were followed to collect the samples and to identify the donors of the samples in the court-ordered test, Dr. Taddie concluded that samples were taken from a person other than R. for the home DNA test (presumably one of Stephanie’s older children, who were fathered by James). Kimberlee Sais, who initialed the verification boxes on the forms provided for the home DNA test stating that she witnessed the collection of samples from R. and from James, testified at the trial that she did not recall whether she actually saw Stephanie collect the samples from R. She acknowledged that, despite her initials on the form indicating that she witnessed collection of James’s sample, James was not present in her home and his sample was not collected in her presence.
Stephanie and James did not proffer the home DNA test as evidence that James is R.’s biological father. Rather, Alex relied on Dr. Taddie’s testimony that someone other than R. was the source of the genetic material purporting to be R.’s in the home DNA test and on Kimberly Sais’s testimony to show that James and Stephanie falsified the home DNA test in order to discourage him from asserting his claim to paternity and to prevent him from developing a relationship with R. This evidence was offered in support of Alex’s claim that he qualified as R.’s presumed father under In re Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). In Kelsey S.,the California Supreme Court held that a biological father who cannot qualify as a presumed father under section 7611 because he has been precluded by the mother from receiving the child into his home may nevertheless qualify as a presumed father if he has done everything he reasonably could do under the circumstances to demonstrate a full commitment to his parental responsibilities. (Kelsey S., at pp. 825, 849.)
Despite this evidence, the court concluded that there was insufficient evidence to determine whether Alex “is (or is not)” R.’s biological father. It also found that the conclusive presumption of paternity did not apply, in that James and Stephanie were not married at the time of R.’s birth. However, it determined that James is R.’s presumed father under section 7611, subdivisions (c) and (d), and it refused to set aside James’s voluntary declaration of paternity, holding that it would not be in R.’s best interest to do so. It made no determination as to R.’s biological paternity. The court denied Alex’s application for continued visitation with R. after entry of judgment.
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.”
Alex filed a timely notice of appeal.
LEGAL ANALYSIS
ALTHOUGH THE COURT’S FINDING THAT ALEX FAILED TO PROVE HIS BIOLOGICAL PATERNITY IS NOT SUPPORTED BY THE EVIDENCE, ITS JUDGMENT THAT JAMES IS R.’S PRESUMED FATHER MUST BE AFFIRMED
Alex contends that we must reverse the judgment, in part because “substantial and undisputed evidence in the form of two separate court ordered genetic tests” established him as the biological father. He contends that the court’s reliance on the home DNA test to create a perceived conflict in the evidence as to James’s paternity was unreasonable, in part because the evidence established that the home DNA test was unreliable and in part because the parties stipulated that James is not R.’s biological father.
We review the court’s finding that Alex failed to prove his paternity under the substantial evidence standard. As that standard is normally applied, our review “‘“begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.]’” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) When a trial court frames its finding in terms of the absence of sufficient affirmative proof, however, applying the usual formulation of the substantial evidence standard can be problematic: “To find substantial evidence in support of a finding of no evidence draws the reviewing court into a kind of juridical shell game.” (Greening v. General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 550; see Heap v. General Motors Corp. (1977) 66 Cal.App.3d 824, 831.) In order to succeed in arguing that substantial evidence does not support the court’s finding that the appellant failed to meet his burden of proof, the appellant must demonstrate that the evidence in support of his position was “indisputable”—that no reasonable trier of fact could have rejected that evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.) Stated another way, Alex must show that “the only reasonable hypothesis” deducible from the evidence is that he is R.’s biological father, as shown in the two Long Beach Genetics tests. (Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099 [negligence is established as a matter of law if it is the only reasonable hypothesis deducible from the evidence].)
The trial court stated that it was not persuaded that the DNA tests demonstrated Alex’s paternity because of what the court saw as an unresolved conflict between the home test and the Long Beach Genetics tests. The court found that Stephanie used “proper DNA testing procedures” for the home test. However, the court also acknowledged that Alex’s expert witness, Dr. Taddie, testified credibly that the results of the home test and the Long Beach Genetics tests showed that the test samples purporting to be from R. were in fact taken from two different people. The court found an impasse in the evidence because, despite its efforts to compare the genetic factors listed for R. in the two tests, it was “unable to do so. Certainly the tests seemed different, but there was enough information missing to cast doubt on whether the court could figure it out. Dr. Taddie didn’t go into that in depth. There were not enough contradictions or aspersions cast upon the home test done by Stephanie to indicate that test was, in fact, invalid.”
This conclusion is untenable because it is contrary to the parties’ stipulation that James is not R.’s biological father. A stipulation as to a factual matter “‘is a conclusive concession of the truth of a matter which has the effect of removing it from the issues.’ [Citation.]” (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269; see People v. Hayes (1999) 21 Cal.4th 1211, 1258.)Consequently, the court was required to accept as a fact that James is not the biological father. A corollary of the stipulation is that the home DNA test results, which purported to show that James is the biological father, are invalid. Thus, the court was not at liberty to conclude that the home DNA test results warranted rejection of the Long Beach Genetics test results which showed that James is excluded as the biological father and that Alex is in all probability R.’s biological father.
The court’s reliance on Stephanie’s testimony to establish the reliability of the home DNA test is puzzling, in that the court ruled that her testimony on this point was relevant only to Alex’s claim under Kelsey S. We note that several times during the trial, the court acknowledged that the DNA tests conclusively proved that Alex is the biological father. The court’s statement of decision does not explain this about-face and does not even acknowledge the parties’ stipulation that James is not R.’s biological father.
The Long Beach Genetics tests both concluded that there is probability in excess of 99.99 percent that Alex is the father of R. There was no evidence that the test results were compromised in any way, nor was there any evidence which could account for the fact that two samples collected from R. on different dates for the two Long Beach Genetics tests both showed that R. was in all probability Alex’s child if, in fact, R. is not Alex’s child. Given that evidence and the parties’ stipulation that James was excluded as the father, we conclude that Alex proved that “the only reasonable hypothesis” deducible from the evidence is that he is R.’s biological father. (Horn v. Oh, supra,147 Cal.App.3d at p. 1099.) Consequently, he has met his burden on appeal to demonstrate that the court’s finding of insufficient evidence is not supported by substantial evidence. (In re Sheila B., supra, 19 Cal.App.4th at pp. 199-200.)
Our conclusion that Alex is R.’s biological father does not compel reversal of the balance of the judgment, however. The court found that James is R.’s presumed father under section 7611, subdivisions (c) and (d). Alex does not challenge this finding. Rather, he contends that the court erroneously found that he did not qualify as a presumed father under Kelsey S., supra,1 Cal.4th 816. (See fn. 4, ante.) Even if the court should have found that Alex qualified as a presumed father under Kelsey S., however, the outcome would remain the same, because where there are two men who qualify as the child’s presumed father, the court must exercise its discretion to determine which man should be deemed the presumed father. (§ 7612, subd. (b); In re Jesusa V., supra, 32 Cal.4th at p. 607.) The court is not compelled to find in favor of the biological father. Rather, it must weigh “every relevant consideration of policy and logic,” including biology, to determine which presumption should prevail. (Jesusa V., at pp. 607-608.)
Section 7611, subdivision (c)(1) provides that a man is a child’s presumed natural father if he married the child’s mother after the child’s birth and is named, with his consent, on the child’s birth certificate. Subdivision (d) provides that a man is a child’s presumed father if he receives the child into his home and openly holds the child out as his natural child.
There can be only one presumed father. (In re Jesusa V. (2004) 32 Cal.4th 588, 603 (Jesusa V.).) A man who has raised a child as his own may prevail over the biological father. (Id. at pp. 607-608.)
Paternity presumptions are “‘driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an “‘interest in preserving and protecting the developed parent-child... relationships which give young children social and emotional strength and stability.’” [Citations.]’” (In re Nicholas H. (2002) 28 Cal.4th 56, 65.) Consequently, the courts have repeatedly held, in applying paternity presumptions, that “‘the extant father-child relationship is to be preserved at the cost of biological ties. [Citations.]’” (Ibid.) In the case of a child over the age of two years, “‘“‘“the familial relationship between the child and the man purporting to be the child’s father is considerably more palpable than the biological relationship of actual paternity. A man who has lived with a child, treating it as his [child], has developed a relationship with the child that should not be lightly dissolved.... This social relationship is much more important, to the child at least, than a biological relationship of actual paternity....”’”’ [Citations.]” (Ibid.) Here, the court concluded that intruding on R.’s established family “to create a third parental relationship” would “only come at the expense of impugning his extant relationships.” Because the court applied the appropriate legal standard, Alex must demonstrate that the court acted arbitrarily, capriciously or irrationally in order to show an abuse of discretion. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.) He has not done so, and he has consequently failed to meet his burden of demonstrating reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Accordingly, we affirm the judgment to the extent that it determines that James is the presumed father of R. and denies Alex’s petition for custody or visitation.
At oral argument, Alex contended that we should remand the cause with directions to the trial court to consider evidence which Alex proffered as to the nature and quality of his relationship with R., because in the absence of that evidence the court could not make a reasoned determination as to which of the two men should be deemed R.’s presumed father. He stated that the trial court refused to hear that evidence in rebuttal. However, our review of the record shows that the only offer proof Alex made as to his rebuttal evidence was that he could testify that he took Stephanie’s “children” to three activities—a Super Bowl party, a “Fifties” style party and a birthday party. We fail to see how this evidence could have persuaded the court to choose Alex over the man who had raised R. since his birth. (See Jesusa V., supra, 32 Cal.4th at pp. 607-608.)
DISPOSITION
The judgment denying Alex M.’s petition to establish biological paternity of R. is reversed with respect to the finding of biological paternity. The Superior Court is directed to modify the judgment to state that Alex M. is R.’s biological father. The judgment on Alex M.’s petition is affirmed with respect to the denial of visitation.
The judgment granting the petition of James A. to establish legal paternity is affirmed.
The parties are to bear their own costs on appeal.
We concur: Ramirez, P.J., Miller, J.