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Phillip v. Kimberly

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
No. C042351 (Cal. Ct. App. Nov. 25, 2003)

Opinion

C042351.

11-25-2003

PHILLIP C., Plaintiff and Appellant, v. KIMBERLY F., Defendant and Respondent. TOM L., Plaintiff and Respondent, v. KIMBERLY F., Defendant and Respondent.


Phillip C. appeals from a trial court order denying his petition to establish his paternity of two minor children born to Kimberly F. while she was co-habiting with Tom L. Phillip argues the trial court erred in failing to accord him presumptive father status based on a DNA test he commissioned that showed he was the biological father of the children. Phillip also claims he was denied his substantive due process right to establish his paternity of the children.

We shall conclude the court correctly found Phillip was not a presumptive father under the applicable statutes, and that he had no substantive due process right to establish his paternity despite the evidence he presented that he was the biological father of the children.

FACTUAL AND PROCEDURAL BACKGROUND

The trial courts order recited the following factual background, which the parties do not dispute on appeal.

The trial courts order gives the full name of all parties. We have changed the order to refer to the parties by their first name or first name and last initial to protect the identity of the minors.

"Kimberly [F.] and Tom [L.] met in 1989 in Virginia. Both moved to California in 1991, residing together except for extended periods of time when [Kimberly] moved back to Virginia. [Kimberly] and [Tom] were residing together when [Kimberly] became pregnant in 1994. The pregnancy resulted in the birth of Cameron [L.] on February 27, 1995. [Tom] was named as the childs father on the birth certificate, and believed himself to be the biological father. Though the child had blue eyes and blond hair, [Tom], who is of Chinese decent, accepted [Kimberly]s assurances that only he could be the father [of] Cameron. In fact, [Kimberly] became involved in an intimate relationship with Phillip [C.] in 1994 and was having . . . sexual relations with both [Tom] and [Phillip] during the time she became pregnant.

[Tom] and [Kimberly] did not marry, but continued to live together as a family unit, treating Cameron as [Tom]s child. However, [Kimberly] also continued her relationship with [Phillip]. [Kimberly] became pregnant again in 1996, giving birth to [K. L.] on January 11, 1997. [Tom] was again listed as the childs father on the birth certificate. The day after [K. L.]s birth, [Kimberly] and [Tom] both signed a Declaration of Paternity provided by the hospital pursuant to Family Law Code § 7571(a) indicating [Tom] was the natural father of [K. L.]. Although [Kimberly]s declaration also stated [Tom] was the only possible father of the child, in fact, [Kimberly] had been engaged in a sexual relationship with both [Tom] and [Phillip] during the time she became pregnant with [K. L.].

[Kimberly] and [Tom] continued to reside together as a family unit, and [Kimberly] continued her relationship with [Phillip], treating him overtly as a family friend, while engaging in a covert affair. [Phillip] had frequent contact with Cameron and [K. L.] as a family friend, helping [Kimberly] run errands with them, helping Cameron and [Phillip]s son from another relationship participate in sports, baby sitting, and involving the children in his family functions. [Phillip] admits he always believed Cameron and [K. L.] were his biological children and his family and friends knew they were his children. However, he never publicly acknowledged them as his children or assumed the role of father toward them.

In June 2000, [Phillip] discovered [K. L.] was seeing a third man. [Phillip] had DNA testing performed on Cameron and [K. L.] to determine if he was their biological father. The test results indicated he was the biological father of both children. [Phillip] confronted [K. L.] with this information in July 2000. Neither [Phillip] nor [K. L.] informed [Tom] about the DNA testing or raised a question about the paternity of the children. [Kimberly] continued to live with [Tom] while engaging in an affair with [Phillip].

In January 2002, [Phillip] discovered [Kimberly] was again seeing a third man. Intending to end his relationship with [Kimberly], [Phillip] filed the within petition to establish his paternity of Cameron and [K. L.] The filing of that petition was followed by the filing of [Tom]s petition to establish his paternity."

The trial court found the petitions filed by both Phillip and Tom were filed pursuant to the Uniform Parentage Act, which prescribes when and by whom an action for paternity may be brought. The court found Tom was a presumptive father pursuant to Family Code section 7611, subdivision (d) because he received the children into his home and openly held them out as his natural children, as required under that section to establish presumptive father status. The court found Phillips evidence he was the biological father did not necessarily rebut the presumption arising under section 7611, subdivision (d).

References to a section are to the Family Code.

The trial court further found Phillip had presented insufficient evidence to establish his paternity under the presumption created by section 7611, subdivision (d) because although the children knew him and stayed at his house occasionally, his relationship with them was that of a family friend, and he had not met the requirement of publicly holding the children out as his natural children. Because Phillip could claim no presumptive father status, the trial court found he had no standing to bring a paternity action under the Uniform Parentage Act.

The trial court found the laws did not impinge on Phillips right of substantive due process. It stated: "[a] biological fathers desire to establish a personal relationship with a child, without more, is not a fundamental liberty interest protected by the due process clause." Because Phillips contact with the children had been as a friend rather than a father and he never financially supported the children or assumed any other parental responsibilities with respect to raising them, the trial court found he had no protected due process interest.

The court denied Phillips petition and awarded joint legal custody of Cameron and K. L. to Kimberly and Tom.

Tom passed away after the trial court rendered its decision in this case. Thus, only Kimberly has filed a respondents brief.

DISCUSSION

The Uniform Parentage Act, sections 7600, et seq., establishes a framework by which courts make paternity determinations. (Dawn D. v. Superior Court (Jerry K.) (1998) 17 Cal.4th 932, 937.) The Act provides a number of presumptions to assist courts in determining whether a man is the natural father of a child. A determination that a man is the natural father results in a legal relationship that "confers or imposes rights, privileges, duties, and obligations." (§ 7601.)

Section 7611 of the Act provides in pertinent part:

"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) [essentially, the child of a wife cohabiting with her husband] or Chapter 3 (commencing with Section 7570) [a man who has signed a declaration of paternity pursuant to section 7574] of Part 2 or in any of the following subdivisions:

(a) He and the childs 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 childs birth, he and the childs 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.

(c) After the childs birth, he and the childs natural 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 childs father on the childs 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."

Section 7612 provides, except in the case of the child of a cohabiting husband and wife or a child for whom a declaration of paternity has been executed, the presumptions of section 7611 are rebuttable, and may be rebutted "in an appropriate action only by clear and convincing evidence." If more than one conflicting presumption arises under section 7611, the controlling presumption is the one "which on the facts is founded on the weightier considerations of policy and logic . . . . (§ 7612, subd. (b).) A presumption under section 7611 may also be rebutted by a "judgment establishing paternity of the child by another man." (§ 7612, subd. (c).)

Section 7540 sets forth a conclusive presumption that a child of a wife cohabiting with her husband is a child of the marriage. Nonetheless, this conclusive presumption has some limitations. By its own terms, section 7540 provides the presumption does not operate if the husband is impotent or sterile. Additionally, section 7541 provides the presumption may be rebutted by a court finding, based on blood test evidence, that the husband is not the father of the child. Such blood tests must be requested within two years of the childs birth and must be ordered by the court and performed by approved laboratories. (§§ 7541, subd. (b-c), 7551, 7552; Miller v. Miller (1998) 64 Cal.App.4th 111, 119.)

Section 7540 is not a part of the Uniform Parentage Act.

Section 7555, on which Phillip bases his appeal, states in part as follows:

"(a) There is a rebuttable presumption, affecting the burden of proof, of paternity, if the court finds that the paternity index, as calculated by the experts qualified as examiners of genetic markers, is 100 or greater. This presumption may be rebutted by a preponderance of the evidence."

Section 7555 is a part of Chapter 2 of Part 2 of Division 12 of the Family Code, and is titled the "Uniform Act on Blood Tests to Determine Paternity." (§ 7550.) Chapter 2 provides the court may order genetic tests of the mother, child, and alleged father. (§ 7551.) The test must be performed by an approved laboratory and the results must be accompanied by a declaration of the custodian of records of the laboratory attesting to the chain of custody of the genetic samples and the procedures used in testing. (§ 7552.5, subd. (a).) If a party objects to the test results, the court shall appoint experts as witnesses to testify and be subject to cross examination. (§ 7552.5, subd. (c).) The court makes its determination of paternity based on the conclusions of the experts as disclosed by the tests. (§ 7554.)

I

Section 7555 Presumption

Phillip argues the trial court erred because it assumed Tom was the only presumptive father. He claims his presumption of paternity arises not under section 7611, but under section 7555. Phillip claims the method for resolving competing presumptions under section 7612 applies only to presumptions under section 7611. He argues such weighing is unnecessary when a man produces evidence of paternity pursuant to section 7555.

The trial court did not err in failing to attribute the section 7555 presumption to Phillip, because Phillip did not fulfill the requirements that would have entitled him to the presumption. By its own terms, the section 7555 presumption attaches only if the court makes a finding that the test results are 100 percent or greater based upon a court ordered genetic test. The test must be performed by an approved facility and the results must be accompanied by a declaration attesting to the testing procedures and chain of custody of the samples. The opposing party must have an opportunity for cross examination.

The DNA report submitted by Phillip met none of these requirements. It was not ordered by the court. Rather, Phillip himself had the tests performed a year and a half before he took the instant court action. The court made no finding regarding the test results. The report does not indicate whether it was performed by an approved laboratory. It was accompanied by no declaration.

Since Phillip had no court finding of paternity as required by section 7555, he cannot now claim this was the basis of an overriding presumption in his favor. Indeed, Phillip did not make any claim to paternity based on section 7555 below. This is an argument he raises for the first time on appeal.

Accordingly, the trial court did not err in finding Phillip was not a presumed father.

II

Due Process

Phillip argues the trial courts application of Californias paternity presumptions under the Uniform Parentage Act deprived him of his substantive due process rights to a relationship with his children without a sufficient state interest to justify such action. However, the state did not impermissibly deprive Phillip of due process because he had no substantive due process right to a relationship with the children.

"`[A]n unwed fathers biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent-child relationship will do so." (Michael H. v. Gerald D. (1989) 491 U.S. 110, 142-143 (dis. opn. of Brennan, J.), quoted with approval in Dawn D. v. Superior Court, supra, 17 Cal.4th at p. 941.)

The California Supreme Court has held that an unwed father has a constitutional due process right to establish a parental relationship with his child if he "promptly comes forward and demonstrates a full commitment to his parental responsibilities—emotional, financial, and otherwise . . . ." (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) The court held that in determining whether the biological father has "come forward to grasp his parental responsibilities," his conduct "both before and after the childs birth must be considered. Once he knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate `a willingness himself to assume full custody of the child - not merely to block adoption by others. . . . . [Citation.] A court should also consider the fathers public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid., orig. emphasis, fn. omitted.)

The court concluded that the statutory presumptions were constitutionally invalid "only to the extent [they are] applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities." (Ibid., orig. emphasis.) The statutory scheme is constitutionally sufficient when applied to a father who has failed to make such a showing. (Ibid.)

In the present case, Phillip showed he had established a relationship with the children as a family friend, but not as a parent. He did not establish he had publicly acknowledged paternity, had paid for the mothers pregnancy or birth expenses, or that he took prompt legal action to seek custody of the children. He did not file the instant petition until the children were six and four. In short he was not able to demonstrate the commitment to his parental responsibilities that is required before a substantive due process right attaches. Absent such a demonstrated commitment, he had no substantive due process right to establish a parental relationship.

DISPOSITION

The judgment (order) is affirmed.

We concur: NICHOLSON, J., MORRISON, J.


Summaries of

Phillip v. Kimberly

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
No. C042351 (Cal. Ct. App. Nov. 25, 2003)
Case details for

Phillip v. Kimberly

Case Details

Full title:PHILLIP C., Plaintiff and Appellant, v. KIMBERLY F., Defendant and…

Court:Court of Appeals of California, Third Appellate District.

Date published: Nov 25, 2003

Citations

No. C042351 (Cal. Ct. App. Nov. 25, 2003)