Opinion
No. F043456.
11-3-2003
In re DOMINIC M. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. WILL L., Defendant and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
A man who receives a child into his home and openly holds out the child as his natural child is presumed to be the natural father. (Fam. Code, § 7611, subd. (d); In re Nicholas H. (2002) 28 Cal.4th 56, 58.) In this juvenile dependency case, appellant, the stepfather of Dominic and Michael M., moved to elevate his status to presumed father under section 7611, subdivision (d). It was uncontested that appellant took care of the boys for some period of time when he and their mother lived together and before their separation. Arguing that he also openly held out both boys to be his sons, appellant claimed he had participated in all aspects of their development and provided financial support. However, there was no evidence that appellant ever told anyone or otherwise openly claimed that the two boys were his natural children. As his trial counsel put it,
"He didnt lie to anybody or give false statements to anybody, but I believe my argument is and still remains that that doesnt prevent him from holding the children out as being his own kids, treating them like they are his own."
The trial court, inferring that appellant told people that the boys were not his children or were his stepchildren, denied appellants motion. This appeal followed.
DISCUSSION
On review, appellant concedes he told people he was the boys stepfather. Nevertheless, he contends the trial court was wrong not to grant him presumed father status. He relies on In re Nicholas H., supra, 28 Cal.App.4th 56 for the proposition that a man does not have to be a childs biological father in order to be deemed the presumed father and assumes the trial court held against him his acknowledgement that he was not the childrens biological father.
We reject appellants claim of error. His motion turned not on the lack of a biological relationship between him and the boys. The law does not condition a finding of presumed father on the existence of a biological relationship. (Fam. Code, § 7611; In re Raphael P. (2002) 97 Cal.App.4th 716, 724 & 733.) However, having claimed he was entitled to presumed father status under section 7611, subdivision (d), appellant had the burden of proving both that he received Michael and Dominic into his home and he openly held them out as his natural children. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1652.) There was no evidence though that appellant openly held out Michael and Dominic as his natural children. Indeed, his admission that he told people he was the boys stepfather flies in the face of the statutory requirement that he "openly and publicly admit paternity" (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051).
Apparently, appellant had a relationship with Michael and Dominic to the extent that the children, according to their counsel, called him "Dad" and would like continued contact with appellant. However, appellant fails to cite and our research has not uncovered any authority for the proposition that such a showing can substitute for the statutory requirement under section 7611, subdivision (d) that the man seeking presumed father status openly hold out the child as his natural child.
While appellant compares himself favorably with the father in In re Nicholas H., supra, 28 Cal.4th 56, we fail to see how the facts or the decision in that case support his claim of error. In Nicholas H.,supra, 28 Cal.4th at pages 59-61, Thomas, who was admittedly not the biological father of the dependent child Nicholas, sought presumed father status based on the following showing. When the mother was pregnant with Nicholas, she moved in with Thomas. Both he and the mother wanted him to act as a father to Nicholas. Consequently, Thomas participated in Nicholass birth, was listed on Nicholass birth certificate as his father, provided a home for the mother and child for several years. He even took legal action to establish a parental relationship when the mother later tried to prevent him from seeing Nicholas. And, as the court put it, Thomas "consistently referred to and treated Nicholas as his son." (In re Nicholas H., supra, 28 Cal.4th at p. 61.) The mother nevertheless claimed another man who had not come forward to assert any parental rights was Nicholass biological father. (Ibid.) The juvenile court found the presumption under section 7611, subdivision (d) that Thomas was Nicholass natural father had not been rebutted. (In re Nicholas H., supra, 28 Cal.4th at pp. 61-62.) The court of appeal reversed, concluding that Thomass in-court admission that he was not Nicholass biological father, in addition to the mothers testimony, necessarily rebutted the presumption. (Id. at pp. 62-63.) The California Supreme Court reversed the appellate court judgment, concluding, in pertinent part, a man does not lose his status as a presumed father by admitting he is not the biological father. (Id. at pp. 63-70.)
Appellant bears little comparison to the father in In re Nicholas H., supra. At best, it was undisputed that appellant and the boys mother began living together when the boys were toddlers and appellant took care of the boys. Absent, however, was any evidence that: appellant participated in either childs birth; he was listed on either childs birth certificate; he took any legal action to establish a parental relationship with the boys before their dependency; and he ever referred, let alone consistently referred, to Michael and Dominic as his sons.
By his argument, appellant would have this court essentially rewrite the statute, to eliminate the requirement that a man openly hold out the child as his natural child. This, however, is not within our power. (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 17-18.) When the statutory language is clear and unambiguous, as in this case, it controls. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) Appellants argument is better made to the Legislature.
DISPOSITION
The order denying appellant presumed father status is affirmed. --------------- Notes: All further statutory references are to the Family Code, unless otherwise indicated.