Opinion
H046504
06-09-2020
Estate of ALFRED THOMAS, JR., Deceased. ROSALYN HARRINGTON, Petitioner and Appellant, v. LEVANA HENSON, Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. PR176767)
Appellant Rosalyn Harrington challenges the probate court's denial of her petition under Probate Code section 6453, subdivision (b)(2) seeking a determination that she was the child of decedent Alfred Thomas, Jr. (Alfred). She claims that the trial court applied the "wrong legal test" in determining that she had not "established by clear and convincing evidence that the parent has openly held out the child as that parent's own," as required by section 6453, subdivision (b)(2). Rosalyn also contends that the probate court was obligated to find that she had met her burden because the facts were uncontroverted. We reject her contentions and affirm the probate court's judgment.
Subsequent statutory references are to the Probate Code.
I. Procedural Background
Alfred died intestate in November 2014. In June 2015, Levana Henson, Alfred's half sister, filed a petition to administer Alfred's estate. Henson's petition identified as Alfred's children one daughter, Cynthia Laverne Thomas, and two sons, Bryan Thomas and Eric Donnell Thomas. In October 2015, the court appointed Henson as the administrator of Alfred's estate. An October 2016 inventory and appraisal of Alfred's estate estimated its value as a little more than $500,000. In September 2017, Rosalyn filed a petition alleging that she was Alfred's child and seeking a determination of her entitlement to a distribution from Alfred's estate. Henson contended that Rosalyn was not Alfred's child.
Cynthia, Eric, and Bryan initially disclaimed any interest in Alfred's estate because it was their understanding that Alfred wanted his estate to go to Henson. Cynthia and Eric later revoked their disclaimers and instead assigned their interests to Henson. --------
The dispute was tried to the court in August 2018. In October 2018, the court issued a proposed statement of decision finding that Rosalyn had failed to meet her burden of proving by clear and convincing evidence that Alfred "made unconcealed affirmative representations of paternity in open view." Rosalyn filed objections to the proposed statement of decision, and the court issued a final statement of decision and judgment to the same effect in November 2018. Rosalyn timely filed a notice of appeal from the judgment.
II. Evidence Presented at Trial
The parties presented numerous witnesses at trial. We summarize the testimony of the primary witnesses.
A. Marian Jones's Testimony
Marian Jones, one of Alfred's half sisters, testified on behalf of Rosalyn. Marian, who was 80 years old at the time of trial, testified that Alfred dated Rosalyn's mother, who was Marian's best friend, at some point in the late 1950's. Marian identified a photograph of Alfred and Rosalyn's mother in which Alfred had his arm around Rosalyn's mother. She was not sure when or where the photograph had been taken, but she thought it was taken in 1958 or 1959. Marian testified that Rosalyn's mother became pregnant by Alfred, and Alfred told her that Rosalyn's mother was pregnant with his child. Alfred was still married to Cynthia's mother when Rosalyn was born in 1959 in Louisiana. Marian testified that after Rosalyn was born Alfred acknowledged to Marian that he was Rosalyn's father. She testified that they never spoke of it again. Marian testified that Alfred and Rosalyn's mother lived with her in her house in Louisiana at some point "for maybe about three years." After Rosalyn was born, Alfred and Rosalyn's mother continued to live together in Marian's home for about a year before "they broke up." Rosalyn and Rosalyn's mother moved out, but Marian continued to see them "[a]ll the time."
Alfred moved to California when Rosalyn was "maybe two." Marian moved to California in 1965, but she kept in touch with Rosalyn and Rosalyn's mother. At some point, Rosalyn moved in with Marian's daughter. After Rosalyn's daughter Tyraa was born, Marian encouraged them to come to California. They moved to California in 1991 and began living with Marian. Rosalyn and Tyraa had a "close relationship" with Marian, lived with Marian in San Francisco for "a couple of years," and met Marian's family members. Rosalyn subsequently moved in with Marian's father and took care of him.
All of this time, Alfred was living in San Jose with his wife, Betty June Galloway, whom he had married in the 1960's. Marian and Alfred were somewhat estranged. However, Marian testified that she heard Alfred refer to Rosalyn as his daughter and Tyraa as his granddaughter. Marian testified that Henson took Rosalyn to visit Alfred and Betty. She also testified that, in a conversation between Marian and Alfred, Alfred referred to Tyraa as his granddaughter.
B. Nathaniel Galloway's Testimony
Nathaniel Galloway, Betty June Galloway's nephew, testified on behalf of Rosalyn. Nathaniel was born in California in 1973. He was raised by Alfred and Betty June until he was 16 years old. Nathaniel testified that, when he "was a kid," he, Bryan, and Eric "just . . . knew" that Alfred was Rosalyn's father. At some point in his childhood, Nathaniel overheard Alfred say, during an argument, that Rosalyn was his daughter. When Nathaniel was an adult, Alfred once told Nathaniel that Rosalyn was his daughter, but no one else was present when this occurred. He also heard Alfred refer to Rosalyn as his daughter in the presence of his mother, her daughter, and Alfred's friend "Hal."
C. Whitney Thomas's Testimony
Whitney Thomas testified on behalf of Rosalyn. Whitney is Bryan's daughter and Alfred's granddaughter. She testified that she spent time with Alfred in the last years of his life. When Whitney asked Alfred who Rosalyn was, he said "That's my daughter." Alfred would "refer to Rosalyn Harrington as his daughter." The only specific occasion Whitney could recall when anyone else was present when Alfred did so was when Whitney's mother and a friend of the family named Howard were present. She explained: "[E]very so often we would be sitting outside hanging out and a friend of the family would come up or pull up and they would play dominoes or talk with us, too, and, yeah, he would refer to her as his daughter." Whitney "couldn't give a specific date," and she did not "remember specifically what he said word for word" because it "was too long ago." Whitney testified that there was another occasion when Alfred referred to Rosalyn as his daughter in the presence of Whitney's mother and sister and a neighbor named Scotty, but she could recall no other details.
D. Rosalyn's Testimony
When Rosalyn was a child, her mother and grandmother told her that Alfred was her father. Her only recollection of Alfred from her childhood was when she was three or four years old. She testified that Alfred came to the door, and her mother told her that this was her father "and he's leaving." Rosalyn testified that she and her mother never discussed Alfred.
Rosalyn kept in touch with Marian after Marian moved to California. When Rosalyn had her daughter Tyraa in 1979, she talked to Alfred on the telephone, and Alfred said "I got a granddaughter." In 1991, Rosalyn and Tyraa moved to California to live with Marian. Shortly after Rosalyn arrived in California, Henson drove her to San Jose to visit Alfred. After that visit, Rosalyn visited Alfred once a month and called him about once a week. She testified that Alfred always picked her up at the BART station and returned her there. Rosalyn testified that Alfred told her that he was her father and introduced her to others and referred to her in the presence of others as his daughter.
E. Tyraa's Testimony
Tyraa testified that she met Alfred a few months after she and Rosalyn moved to California, and she saw Alfred "every few months" after that. All of those visits were by car; they never took the train. When Tyraa graduated from middle school, she received a card from Alfred and his wife signed "Grandma" and "Grandpa . . . ." However, Tyraa always referred to Alfred's wife as "Aunt Betty." Alfred "never" said "you're my granddaughter," but he introduced her to his neighbors as "my granddaughter."
F. Henson's Testimony
Henson testified that she and Alfred had a good relationship and spent a lot of time together. She knew that Alfred was dating Rosalyn's mother in the late 1950's. She testified that Alfred was in jail for several months in 1958. After his release, he lived with Henson. Rosalyn's mother did not live with them. Henson denied that Alfred had had a pregnant girlfriend in 1958 or 1959. Henson testified that Alfred moved to California in 1960 or 1961. Alfred never told Henson that Rosalyn was his daughter. Henson denied having driven Rosalyn to see Alfred. In 2013, Marian told Henson that Rosalyn was Alfred's daughter.
During Henson's attorney's examination of her, the following colloquy occurred: "Q. Now, did Alfred tell you he wanted you to have his home? [¶] A. Yes, he did. [¶] MR. CROSBY [(Rosalyn's attorney)]: Objection, Your Honor. [¶] THE WITNESS: He gave me the keys to the house. [¶] MR. CROSBY: Objection, Your Honor. Let me jump in. This is completely irrelevant to the paternity proceeding. We've had this conversation before today with regard to the decedent's purported wishes. It's completely irrelevant. Case law is black and white on that, Your Honor. [¶] MR. WADE [(Henson's attorney)]: I'm sorry, may I respond? Your Honor, it's no different than any other question. It goes to the closeness of these two parties, Alfred and the witness. [¶] So whatever he was saying to her, we're claiming that they had a close relationship and it was to support some of things she's saying that he said to her so because of that closeness. [¶] If he, for example, told her he wanted her to have his house and things of that nature and now it's common knowledge, then that will support her testimony that they were close. And so it's relevant on both grounds. [¶] THE COURT: And Mr. Crosby, you're back on your feet. [¶] MR. CROSBY: Yeah, absolutely, Your Honor. No, it's completely irrelevant. Again, the case law is crystal clear that a decedent's purported wishes are irrelevant to an intestate proceeding. Irrelevant. [¶] If counsel wants to get into the closeness of the relationships, he can do that through a number of other ways, but the decedent's wishes are irrelevant. [¶] THE COURT: What I'm trying to understand -- this issue has now come up a second time, and you've jumped to your feet. Why is this a sensitive issue? [¶] MR. CROSBY: Because, again, this actually goes to her bias, the witness's bias, because she wants to take the entirety of this estate, which is the only reason why in our opinion she's disputing parentage. [¶] But what I want to do and why I want to get to this is because this is about Rosalyn's paternity, not about what the decedent wanted. That's not even part of this case. It's not part of this issue. It's not part of this probate proceeding in general. [¶] THE COURT: Okay. Well, I'm going to overrule the objection. I agree with Mr. Wade that there could be some probative value with respect to relationship, and Mr. Crosby, I think I agree with the things you've said about relevance and intestate and that line of reasoning. [¶] But here I think it may have some, you know, relevance, but I don't know how relevant it will be. But I don't see any prejudice, so I'll let Mr. Wade ask the question."
Henson proceeded to testify that Alfred told her he wanted her to have his house and gave her the keys. She testified: "He said he had talked to his three children and they all had their own houses and they said it was okay for him to give me his house. And so at that time he gave me the keys to his house." Henson testified that Nathaniel was angry because he wanted to buy Alfred's house, but Henson would not sell it to him. Nathaniel had been living in the house and stopped paying rent. He eventually moved out but damaged the house before he left.
G. Cynthia Thomas's Testimony
Cynthia, who was born in 1955, testified that she lived with Alfred from age one to age five. The last 10 to 15 years of Alfred's life, he and Cynthia were "very close" and "told each other everything." She testified that she met Rosalyn once, when Marian brought Rosalyn to Alfred's house. Cynthia asked Alfred "who was this, and he just said, This is someone you don't want to know." Alfred never told Cynthia that Rosalyn was his daughter.
The following colloquy occurred during Cynthia's testimony. "Q. And what did he say to you about his house? [¶] A. He asked us, me, my brother Eric and my brother Bryan would it be okay if he left his home and whatever assets he had to Aunt Levana [Henson]. I said, yes, 'cause if anybody deserves it, she does. [¶] MR. CROSBY: Your Honor, I'll just object, again, on the relevance grounds. [¶] THE COURT: And, again, your point yesterday is that it has no relevance with respect to administrating the estate. I think it may have some possible relevance to the issues that are here today, and so I'm going to overrule the objection."
H. Post-Death Evidence
An obituary for Alfred listed Rosalyn as his daughter. The obituary had been written by Alfred's cousin. It also listed Nathaniel as one of Alfred's sons. Rosalyn was listed on a form as one of those with the power to control disposition of Alfred's remains.
III. The Court's Statement of Decision
The court's statement of decision identified the legal standard that it was required to apply as the one set forth in section 6453, subdivision (b)(2): "[F]or purposes of intestate succession, California law does not consider whether or not a person was, in fact, a decedent's natural child. Instead, it focuses on a decedent's intent in distributing his estate, as evidenced by whether or not a decedent 'openly held out the child as his own.' " The court expressly stated that it had considered the "guidance" provided by the two cases cited by the parties: Estate of Britel (2015) 236 Cal.App.4th 127 (Britel) and Estate of Burden (2007) 146 Cal.App.4th 1021 (Burden).
The court applied the holding in Britel: "This Court finds the analysis in Britel to be more thorough and persuasive, and below evaluates whether Petitioner is a child of Decedent for purposes of intestate succession by applying the holding in Britel—that 'openly held out' requires 'an unconcealed affirmative representation of paternity in open view.' (Estate of Britel, supra, 236 Cal.App.4th at p. 138.) As Britel explains, 'Intestacy law strives to effectuate the decedent's likely intent in the distribution of his property. A man who represents his paternity in open view is more likely to intend for his estate to pass to the child.' (Ibid.) Britel also states that its 'construction of "openly held out" serves the second goal of intestacy law, i.e., to efficiently and expeditiously carry out the decedent's probable intent.' (Id. at p. 139.) It notes that when an affirmative representation of paternity is made in open view, clear and convincing evidence of it is more likely to exist. 'Clear and convincing evidence,' in turn, is evidence that persuades the Court it is highly probable that the fact is true. (CACI 201.)"
After explaining this standard, the court examined the "eight instances" identified by Rosalyn as times when Alfred had " 'openly held out' " Rosalyn as his child. The court explained that "[t]he Court sees as its most important task assessing whether the eight instances in which Petitioner contends Decedent openly held her out as his daughter constitutes clear and convincing evidence of Decedent's intent to provide her property through intestate succession. Britel requires the Court to focus on whether there was 'an unconcealed affirmative representation of paternity in open view.' In making this assessment, the Court must consider the trustworthiness of the testimony of witnesses based on their demeanor, the content of their testimony, the form of the questions asked, and other evidence presented at trial." The court discounted five of the eight instances because they "did not expressly reference Petitioner." It found that two of these five were not unconcealed or in open view. One of those two was based on testimony about which the court had credibility concerns. The remaining four of these five were not "affirmative" representations. The court found, as to these five instances, that "[c]ollectively" they "constitute weak evidence of Decedent's intent to provide Petitioner with his property through intestate succession."
The court found that the remaining three instances were based on "stronger and more relevant evidence," but had "shortcomings." One instance was based solely on Rosalyn's testimony, and none of the others who were allegedly present testified at trial. A second instance was "vague" and was based on testimony of a "biased" witness. The third instance was based on testimony that the court found "credible," but the court concluded that the testimony was "not specific" about "the words that were used" by Alfred to "refer to Petitioner as his daughter." The court discounted the "obituaries, the program for Decedent's wake, and the cremation remains form" because they were "not prepared by Decedent and therefore do not reveal his own intent."
The court then summarized its conclusions. "Probate Code section 6453, subdivision (b)(2), requires Petitioner to show by clear and convincing evidence that Decedent made 'an unconcealed affirmative representation of paternity in open view' in order to find Decedent intended to provide Petitioner with his property through intestate succession. There is some evidence of unconcealed affirmative representations of paternity. The Court finds, however, that it does not rise to the level of clear and convincing evidence. This is based on the actual words that Decedent allegedly used in describing his relationship with Petitioner, the relatively few instances in 55 years when Decedent allegedly stated Petitioner was his daughter, the lack of particularity of some of the alleged statements, the extent to which testimony offered by both sides seemed rehearsed at times, the form of questions used to elicit the testimony, and the biases and compromised credibility of some members of this fractious family." The court therefore denied Rosalyn's petition.
IV. Discussion
Section 6453, subdivision (b)(2) provides that "[p]arentage is established by clear and convincing evidence that the parent has openly held out the child as that parent's own." (§ 6453, subd. (b)(2).) The " 'openly held out' " language "require[s] an unconcealed affirmative representation of paternity in open view." (Britel, supra, 236 Cal.App.4th at p. 138.) "[A]lthough the representation must be a public one, in the sense of being made in open view, the statute does not require an announcement to the world, an official action, or an affectionate fatherly intent." (Id. at p. 139.) However, it is not sufficient that a person "reveal[ed] the child's existence to persons who are not ' "likely to make public what [the decedent] had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret." ' " (Id. at p. 139.)
As the probate court in this case correctly observed, section 6453, subdivision (b)(2) has been construed by two cases, Burden and Britel.
In Burden, it was undisputed that Gregory was Dale's biological father, that he had acknowledged as much when Dale's mother became pregnant, and that he had proposed marriage to her. (Burden, supra, 146 Cal.App.4th at p. 1024.) She had rejected his proposal, and Dale did not learn that Gregory was his father until Dale was 18 years old. (Ibid.) Dale then met Gregory's family and contacted Gregory, who apologized " 'for being . . . an inactive father.' " (Ibid.) Gregory acknowledged to all of his family members except his daughter Tara that Dale was his son, and some of these acknowledgements were in writing. (Id. at p. 1025.) However, Gregory did not want Dale to meet Tara or for Tara to know that Dale was Gregory's son. (Id. at pp. 1024-1025.) The probate court "found by clear and convincing evidence that Gregory 'openly held out' Dale as his son" and therefore that Dale had met his burden under section 6453, subdivision (b)(2). (Burden, at p. 1024.)
On appeal, Tara claimed that Dale's showing was insufficient to support the probate court's finding. (Burden, supra, 146 Cal.App.4th at p. 1027.) The Second District Court of Appeal began by construing the " 'openly holds out' " language in section 6453, subdivision (b)(2) to mean " 'acknowledge.' " (Burden, at p. 1028.) It then reviewed the probate court's decision under the substantial evidence standard of review and found the evidence sufficient to support the decision. (Id. at pp. 1026, 1029.) "Here, Gregory did more than privately acknowledge that Dale was his son. As noted by the trial court: 'This was proven to the standard of "clear and convincing evidence" by Greg Burden's written acknowledgement that he was a "party to conception"; his having asked Dale's mother Sally . . . to marry him; and his admissions to his own mother, brother and sister as well as to Dale and Dale's mother that Dale was his son.' " (Id. at pp. 1029-1030.) "Although Gregory only grudgingly admitted paternity, he did so on a number of occasions to a number of people, both orally and in writing." (Id. at p. 1030.)
In Britel, Jackie and Amine had a relationship. After Jackie informed Amine that she was pregnant, he replied that "he would never be able to share the news with his parents, and that having a child out of wedlock was contrary to his Muslim religion . . . ." (Britel, supra, 236 Cal.App.4th at pp. 132-133.) Amine subsequently told Jackie not to contact him again, and he said that "he did not want her or the baby to be in touch with him or his family." (Id. at p. 133.) Amine told his best friend that Jackie was pregnant with his child, but he later told this friend that Jackie had had an abortion. (Ibid.) When the child was six years old, Jackie contacted Amine, but he "made it clear he wanted nothing to with Jackie or [the child]." (Id. at p. 134.) Amine never told any of his family members about the child. (Ibid.) After Amine died intestate, Jackie brought a petition under section 6453, subdivision (b)(2). The probate court found that she " 'did not carry her burden of establishing by clear and convincing evidence that Amine Britel openly held out [the child] as his own child' " as required by the statute. (Britel, at p. 134.)
On appeal, the Fourth District Court of Appeal reviewed "for substantial evidence the court's finding Jackie failed to prove by clear and convincing evidence that Amine openly held out [the child] as his own child." (Britel, supra, 236 Cal.App.4th at p. 137.) Jackie argued that Amine had "openly held out [the child] to be his child when he privately conceded during the pregnancy that he fathered her unborn child." (Ibid.) The respondents contended that "a private acknowledgement of paternity does not satisfy the 'openly held out' standard." (Ibid.) In contrast to the Second District's construction of section 6453, subdivision (b)(2), the Fourth District construed the statutory standard to require not simply an acknowledgment of paternity but "an unconcealed affirmative representation of paternity in open view." (Britel, at p. 138.) "[A]lthough the representation must be a public one, in the sense of being made in open view, the statute does not require an announcement to the world, an official action, or an affectionate fatherly intent." (Id. at p. 139.)
The Fourth District adopted this standard because such a representation best served the purposes of the statute, which it found to be: "(1) to carry out the decedent's 'likely intent at the time of death' as to the distribution of his or her estate and (2) to do so in an efficient and expeditious manner." (Britel, supra, 236 Cal.App.4th at p. 138.) The Fourth District pointed out: "Intestacy law strives to effectuate the decedent's likely intent in the distribution of his property. A man who represents his paternity in open view is more likely to intend for his estate to pass to the child. '[I]t makes sense that a decedent would intend his estate to pass to a child he actively raised and nurtured within his family.' " (Id. at p. 139.)
The Fourth District expressly disagreed with language in the Burden opinion suggesting that " 'openly held out' " required no more than a "private admission of paternity . . . ." (Britel, supra, 236 Cal.App.4th at p. 140.) To assist probate courts, the Fourth District provided several "potentially useful general guidelines: 'While it is not required in order to constitute public acknowledgment that the father declare his paternity under all circumstances, it would be opposed to the idea of public acknowledgment if he deliberately refrained from declaring his paternity when the occasion would naturally demand it; or misrepresented the fact, or remained silent when he would reasonably be expected to announce he was the father of the child, as, for instance, in the case of immediate relatives.' [Citation.] Nor does a person publicly acknowledge a child by revealing the child's existence to persons who are not ' "likely to make public what [the decedent] had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret." ' " (Id. at pp. 139-140.) Because Amine had concealed his paternity from his family, the Fourth District concluded that substantial evidence supported the probate court's decision that Jackie had failed to meet her burden. (Id. at p. 144.)
Rosalyn accepts that Britel correctly identified the legal standard that applies under section 6453, subdivision (b)(2). Her appellate claims are that (1) the probate court "employed the wrong legal test" in applying section 6453, subdivision (b)(2) to the evidence presented at trial, and (2) the probate court's decision is not supported by substantial evidence.
A. Wrong Legal Test Claim
Rosalyn points to language in the probate court's statement of decision pertaining to the decedent's intent and claims that this language reflects that the court applied the "wrong legal test" in rejecting her claim.
The probate court several times mentioned in its statement of decision the Britel court's rationale for holding that the statute's " 'openly held out' " language requires " 'an unconcealed affirmative representation of paternity in open view.' " One part of that rationale was that a man who made an unconcealed affirmative representation of paternity in open view was "more likely to intend for his estate to pass to the child." (Italics added.) The probate court mentioned that rationale in both describing and applying Britel's holding. However, the probate court never indicated that it was deciding whether Rosalyn had established that Alfred intended for Rosalyn to inherit rather than assessing the evidence to determine whether Alfred had made an unconcealed affirmative representation of paternity in open view, as required by the Britel court's holding.
Our conclusion in this regard is supported by the probate court's statements during the trial. Rosalyn's attorney objected on relevance grounds to questions about whether Alfred had told Henson that he wanted her to have his house, which was apparently his only substantial asset. During the colloquy between the court and counsel, no one contended that Alfred's statements of his intent that Henson inherit his house were directly relevant to Rosalyn's claim that he made the requisite representation of paternity but only that Alfred's statements were relevant to determine whether Alfred and Henson had "a close relationship." The nature of the relationship between Alfred and Henson was pertinent to whether his failure to tell her that Rosalyn was his daughter reflected that he had not openly acknowledged paternity. Rosalyn's attorney objected: "[T]he case law is crystal clear that a decedent's purported wishes are irrelevant to an intestate proceeding." "[T]his is about Rosalyn's paternity, not about what the decedent wanted. That's not even part of this case. It's not part of this issue. It's not part of this probate proceeding in general." Although the court overruled the objection, the court expressly told Rosalyn's attorney: "I think I agree with the things you've said about relevance and intestate and that line of reasoning. [¶] But here I think it may have some, you know, relevance, but I don't know how relevant it will be. But I don't see any prejudice, so I'll let Mr. Wade ask the question." (Italics added.) By agreeing with Rosalyn's attorney that the "decedent's purported wishes" were not relevant, the court confirmed that it was not confusing or conflating the Britel court's rationale with its holding.
Our reading of the probate court's statement of decision, in light of its statements at trial, is that the court properly considered the rationale for the Britel court's holding in assessing whether Rosalyn's evidence met the standard set forth in the Britel court's holding. We see no lack of clarity in the probate court's express statement that it was "applying the holding in Britel—that 'openly held out' requires 'an unconcealed affirmative representation of paternity in open view.' " The court's statement of decision carefully dissected each instance relied upon by Rosalyn, and it did not base its decision regarding those instances on Rosalyn's failure to produce evidence that Alfred had expressly stated his intent that Rosalyn inherit. Instead, the court explained that it was "consider[ing] the trustworthiness of the testimony of witnesses based on their demeanor, the content of their testimony, the form of the questions asked, and other evidence presented at trial." And the court ultimately found that "[t]here is some evidence of unconcealed affirmative representations of paternity" but that this evidence "does not rise to the level of clear and convincing evidence," and the court explained that this was due to "the lack of particularity of some of the alleged statements, the extent to which testimony offered by both sides seemed rehearsed at times, the form of questions used to elicit the testimony, and the biases and compromised credibility of some members of this fractious family." The court's explanation for its findings reflected that its decision was based on Alfred's representations regarding paternity, not his statements concerning his intent.
On this record, we are not persuaded that the probate court's references to the Britel court's rationale reflected that the probate court was not properly applying the Britel court's holding. We therefore reject Rosalyn's claim that the court applied the "wrong legal test."
B. Substantial Evidence Claim
Rosalyn insists that "[t]he testimony of Marian, Nathaniel, Whitney, ROSALYN, and Tyraa [and documentary evidence] all prove that Alfred did not . . . conceal his paternity of ROSALYN." This argument improperly attempts to turn her burden on its head. Rosalyn was required to prove by clear and convincing evidence that Alfred affirmatively, in open view, and without concealment represented that he was Rosalyn's father. A mere lack of concealment does not satisfy the statutory standard, which requires an affirmative representation by the decedent. Moreover, the probate court was not obligated to accept the evidence produced by Rosalyn. In fact, the court expressly rejected much of it for a variety of reasons, including credibility issues, bias, and "the lack of particularity" of some of the testimony.
While the probate court found Whitney to be "generally credible," it did not find her testimony sufficient to satisfy Rosalyn's burden of producing clear and convincing evidence because her testimony was "not specific" about "the words that were used" by Alfred to "refer to Petitioner as his daughter." The probate court could reasonably conclude that the lack of specificity made this testimony less than clear and convincing.
Rosalyn argues that she presented clear and convincing evidence in support of her petition, but she ignores the fact that this was an issue for the factfinder, not for this court. Rosalyn puts misplaced reliance on the facts of Burden, but that case provides no support for her appellate claim. The appellants in both Burden and Britel unsuccessfully challenged the sufficiency of the evidence to support the probate courts' decisions. In Burden, the probate court had ruled in favor of the child, while in Britel the probate court had ruled against the child. In both cases, the Courts of Appeal affirmed. Here, Rosalyn asks us to do the opposite—to reverse the probate court's decision.
"[I]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] 'Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." ' " (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466.)
Rosalyn claims that the "uncontroverted" facts established that: (1) Alfred told Marian that Rosalyn's mother was pregnant with his child; (2) Upon hearing of Tyraa's birth, Alfred said "I got a granddaughter"; (3) Alfred introduced Tyraa to family and friends as his granddaughter; (4) Alfred told Nathaniel that Rosalyn was his daughter; (5) Alfred referred to Rosalyn as his daughter in front of family, friends, and neighbors; and (6) Alfred told Whitney that Rosalyn was his daughter. The testimony upon which she relies was found insufficient by the probate court. Only the fifth of these six even concerns an allegedly unconcealed affirmative representation of paternity that was open to view. The probate court found that the testimony supporting those alleged representations was neither clear nor convincing because the testimony lacked specificity about the nature of the representations.
In addition, the probate court could properly utilize the "guidelines" provided in Britel and conclude that Alfred's failure to tell either Cynthia or Henson that he was Rosalyn's father established that he " 'remained silent when he would reasonably be expected to announce he was the father of the child, as, for instance, in the case of immediate relatives' " and that the representations that he did make were "to persons who are not ' "likely to make public what [the decedent] had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret." ' " (Britel, supra, 236 Cal.App.4th at pp. 139-140.) In light of the highly contested nature of the evidence presented to the probate court, we reject Rosalyn's claim that the probate court was obligated to find that she had satisfied her burden with "uncontroverted" facts.
V. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Bamattre-Manoukian, J.