Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CS115280, Santa Clara County Super. Ct. No. CP015221
ELIA, J.
In this appeal, Sampson W. challenges a determination by the family court that Paul Q. was the father of two-year-old S., notwithstanding Sampson's previous voluntary declaration of paternity (VDP). Sampson contends that the family court erred as a matter of law by weighing the competing presumptions of Family Code section 7611, because the VDP had the force and effect of a judgment that had not been set aside. He further asserts an abuse of discretion in weighing the relevant circumstances under Family Code section 7612. Finally, Sampson contends that the court incorrectly rejected his assertion that the Indian Child Welfare Act (ICWA or the Act) and Family Code section 175 applied in these proceedings.
Further unspecified references to sections are to the Family Code.
Background
S. was born November 19, 2004, while his mother, Dorian B., was separated from her husband, Paul, and involved in an "on-again-off-again" relationship with Sampson. Dorian listed Sampson as the father on S.'s birth certificate, and both she and Sampson executed a VDP pursuant to section 7574, stating that Sampson was the biological father of S. For "some period after the birth of the child" Sampson lived "sometimes in the house, sometimes out of the house," with Dorian and S. According to Sampson, he and Dorian would "fight periodically" and he would move out for up to two weeks, although at one point, they remained apart for three months. Each time he returned to Dorian's house, he would stay there "for anywhere from two weeks to a month at a time."
The court noted Sampson's inconsistent evidence on the duration of their cohabitation; Sampson's estimates had ranged from two months to a year and a half.
On January 25, 2006, Dorian applied for services from the Department of Child Support Services (DCSS) requesting assistance in obtaining child support. Dorian stated that she and Sampson had been "dating" throughout her pregnancy and the baby's first 14 months. She had terminated their relationship on January 16, 2006, because of his continued verbal and emotional abuse of her and his unwillingness to provide support for S. Although up to three weeks might go by without contact, she had "always allowed [Sampson] unlimited contact" with the baby as long as Sampson was not abusive to her during the visits.
On April 28, 2006, DCSS filed a complaint in superior court alleging that Sampson was the parent of S. and requesting an order that Sampson pay $903 per month as support for the child. On June 16, Sampson answered the complaint and objected to the proposed judgment, stating, "It's possible that the child is not mine. Dorian . . . is [m]arried to Paul [Q.] and was living with him at the time she said she was pregnant, she also had contact with her previous boyfriend. The previous boyfriend is Native American like myself. Note: I will cooperate fully if the child is my son."
On that same day Sampson also filed a "Request for Hearing and Application to Set Aside Voluntary Declaration of Paternity." In that document, he explained, "During the time of conception, the mother and I were in an on again off again relationship. Mother was in contact with her ex Boyfriend and was living with her husband (during conception and still does)."
Paul moved back into the house he shared with Dorian in late August or early September 2006, after a two-year absence. During that period he had continued to deposit his paycheck into their joint account for the mortgage and "necessities of life."
By submitting a Judicial Council form opposing the DCSS complaint and denying that he was S.'s father, Sampson requested a genetic test to determine parentage. Dorian opposed the genetic test, but she supported Sampson's denial of parentage and joined in Sampson's request to set aside the VDP. Instead, she asked that Paul be joined in the action and that the court deem Paul to be the child's father.
In preparation for the September 2006 hearing, Dorian and Paul each submitted a declaration describing the history of the parties' complicated relationship. Dorian stated that she had become pregnant in March 2004 while living with Paul but "romantically involved" with Sampson. She said she believed the baby was Paul's, but she was in love with Sampson and was afraid he would end their relationship if he knew she was "having relations" with her husband, so she "allowed [Sampson] to claim the baby" as his. Dorian explained that Paul had provided physical, emotional, and financial support of her throughout her pregnancy. However, shortly before the birth Paul moved out of their home and Dorian, because of her "foolish romantic inclinations" toward Sampson, allowed Sampson, not Paul, to be present for the delivery. During the first few weeks after S.'s birth, Sampson visited frequently; but soon the visits became less frequent, with long periods of absence. When he did visit, Dorian observed, "he did not interact with the baby much and he did not offer to help care for the baby. His focus was on 'relaxing' and trying to convince me I should reconcile with him." When she insisted on his help, he became angry and threatened to leave; and when she asked for financial support, "he threatened to abandon us." He did, however, give her a few checks totaling $600 in late 2005 or early 2006. In late November 2006 Dorian informed DCSS that she no longer wanted services, and she asked DCSS to close her case. DCSS did not withdraw from the litigation.
DCSS did not file a brief in this appeal, however.
According to Dorian, the "on-again, off-again relationship" between her and Sampson continued throughout 2005, but Sampson's visits with the baby were "sporadic." Meanwhile, Dorian stated, Paul continued to provide a home and support for S. Although she admitted having filed for child support from Sampson through DCSS, Dorian believed that it was in S.'s best interests to grant Sampson's request to set aside his VDP, as Paul was committed to the full responsibility for and care of the child.
Paul stated that he had believed the baby was his, because he had thought that Dorian's extramarital relationship with Sampson was over by the time she became pregnant. It was when Dorian excluded him from the delivery room that he understood that "she still had strong feelings for [Sampson]." However, he never questioned that he was the father of the baby, and soon after the birth he was convinced that the relationship with Sampson had ended. Paul asserted that he had always been the baby's father and would continue his commitment to that role, providing "love and care" as well as financial support. Paul therefore requested a judicial recognition that he was the conclusively presumed father, and he asked the court to terminate any parental rights of Sampson.
Sampson responded in November 2006 by filing a Petition to Establish Parental Relationship and a request for a paternity test. Sampson explained that he was willing to support S. and be an "active father" with custody if he could be "100% sure" that he was the father. Contrary to Dorian's declaration, Sampson asserted that he had made numerous telephone calls to Dorian asking to see S., but she had not returned the calls. Sampson also denied Dorian's account of his involvement in the baby's life; he submitted photographs of him interacting with S. and described having taken time off work to care for S. when the baby was sick. He also claimed to have offered financial assistance but Dorian had merely said she would think about it. Sampson suggested to the court that if the paternity test showed him to be the biological father, then S. "will have two fathers and a mother to raise him with lots of love for him to become a healthy adult."
Paul moved for joinder in the parentage action to allow him to assert his "superior claim" under section 7540, as he was "married and cohabit[ing] with" Dorian and was neither impotent nor sterile when S. was conceived. Moreover, Paul stated, he had received S. into his home and had provided "both support and a nurturing parental relationship," entitling him to at least presumed-father status under section 7611, subdivision (d). Sampson, on the other hand, had seen the child only infrequently and had not received him into his home. Together with the motion for joinder, Paul filed a motion to quash the entire proceeding by conclusively presuming him to be the father under section 7540.
Sampson disputed Paul's account of the facts. He maintained that Paul, "an interloper," had not been residing with Dorian when S. was conceived. Instead, he asserted, Dorian was "spending her time with two boyfriends and possibly, also, [Paul]." Sampson further argued that he had the benefit of a judgment of paternity by virtue of the VDP, under section 7573. Sampson claimed that he had lived in Dorian's home for two months after S. was born, and intermittently after that, for two weeks to a month at a time. If the requested genetic tests established him to be the biological father of S., then he intended to "continue in his life and if he is not, I am not going to support someone else's child." In that event, Sampson suggested, the court could set aside the VDP under section 7575, subdivision (b)(1).
Toward the end of his opposition to Paul's motions, Sampson added that ICWA should be applicable, as Dorian and Paul were in effect attempting to terminate his parental rights. Sampson stated that he was a Muscogee Indian; his father and siblings were members of the tribe, and he was currently filling out the paperwork to be made an official member. In his trial brief, he referred to the action as a child custody proceeding, and as a "de facto Welfare [and Institutions] Code Section 300 action filed by the Claimant and the Respondent" which must be treated "as if this were a 300 action." If he was in fact the father of S., "then he is the 'parent of an Indian child,' " and notice must be given to the tribe.
DCSS also opposed the position taken by Dorian and Paul. Like Sampson, the agency argued that the VDP had the effect of a judgment of paternity which was superior to the evidentiary presumption of Paul as the husband of the mother.
The court commissioner joined Paul in the action on its own motion, found that Sampson's request to set aside the VDP was timely, and continued the matter to January 2007. Meanwhile, the Honorable Derek Woodhouse gave Sampson supervised visitation and ordered genetic testing without expressly setting aside the VDP. The testing showed a probability of 99.99 percent that Sampson was the biological father of S. The parties stipulated to the facts surrounding S.'s birth and the involvement of DCSS.
Trial on the parentage action and DCSS's complaint began on April 20, 2007. The assigned visitation monitor testified that she had provided supervised visitation on two occasions in January, but the child was so distressed that the visits had to be terminated early. On both occasions S. had clung to the monitor, who was a stranger to him, rather than interact with Sampson. The provider, Kid's Haven, Inc., had withdrawn from further involvement and recommended therapeutic intervention instead.
The court commissioner noted that neither he nor Judge Woodhouse had formally set aside the VDP; however, the commissioner ruled that even though no "magic words" were used, Judge Woodhouse "had to have done a set aside" when he ordered the genetic testing. In May 2007, the court heard extensive testimony regarding the living arrangements of the parties, the relationships between Dorian and the two men before and after the birth, and the extent of each man's involvement with the baby. It then took the matter under submission.
Dorian had argued that the VDP was void because the authorizing statute, section 7571, refers to unmarried mothers as those to whom VDP forms should be provided. The court rejected her theory and expressly found the VDP to be valid.
In its ensuing written order, the court found that both men were presumed fathers under section 7611. The court also believed it was compelled to give Sampson presumed-father status by his having signed the VDP. Paul was not entitled to the conclusive presumption of section 7540 by virtue of his marriage and cohabitation with Dorian, because section 7541, pertaining to blood tests, provided an exception to the application of section 7540. The court specifically found that, contrary to their testimony, both Dorian and Paul knew that Paul was not the biological father of S. Dorian had applied for DCSS services so that she could receive support from both men. The court further found that "for some period of time," Sampson "received the child into the home he shared with Dorian" and held himself out to be S.'s father.
Addressing the effect of the VDP, the court clarified its finding that the declaration had implicitly been set aside by Judge Woodhouse's order for genetic testing. The court was convinced that "the only way in which genetic tests could have been ordered by Judge Woodhouse was to honor the request by both Dorian and Sampson . . . to set aside the Voluntary Declaration of Paternity."
Having thus concluded that both Sampson and Paul were presumed fathers under section 7611, the court turned its attention to section 7612, subdivision (b), which guides the resolution of conflicting presumptions. The court scheduled another hearing to enable the parties to present additional evidence or argument specifically addressing which of the presumptions was "weightier."
Dorian, DCSS, and both presumed fathers all submitted supplemental trial briefs. Sampson argued that "weightier considerations" fell on his side; however, if the court were to find otherwise, then it would amount to "a de facto adoption by [Paul] and the Court would be terminating a biological father's right to his child when both are Indians.' " Sampson cited not only ICWA, but Family Code section 175, which declares the Legislature's intent to follow ICWA in all child custody proceedings. DCSS warned that failing to give notice to Sampson's tribe might expose the judgment to attack in federal court, and it recommended continuance of the matter to permit notice to be given to the tribe, along with appointment of counsel for the child. DCSS further argued that policy, logic, and the evidence presented at trial supported Sampson's presumption as the biological father who wanted a continuing relationship with S. Paul pointed out, however, that he was the one with whom S. had bonded; he contrasted his ongoing relationship with and support of S. with the negligible bond between Sampson and S. and Sampson's "woefully lacking" commitment to S.'s needs. Paul submitted a declaration from a witness attesting to his commitment to the baby before and after the birth. Dorian emphasized Paul's "steadfast" commitment to S. beginning with pregnancy (ensuring prenatal health care and providing supplies) and continuing after the birth, providing a home and ongoing care even while separated from Dorian and S.
After hearing further testimony and argument on June 8, 2007, the court entered its judgment. It explained that it was "mindful that one of the weightiest considerations of policy and logic must be the best interests of the minor child in this litigation. Clearly the best interests of the child lie with the parent that has maintained, and will maintain in the future, an enduring relationship with the minor. In other words, one of the things that the Court needs to ask is, 'To whom has the child become bonded?' "
The court acknowledged that both Paul and Sampson had had an "on-again-off-again" relationship with Dorian. Nevertheless, it was Paul who had maintained a "steady fatherly relationship with the minor child since at least the summer of 2006." Reviewing a videotape adduced by Paul, it was "clear" that S. was comfortable with Paul and looked to Paul for assurance and guidance, often calling him "Daddy." Sampson, by contrast, had not been actively involved with the child for about a year; and even before that, their contact was limited. "As a result, [Sampson] has lost a substantial period of time with the child who has become bonded with Paul. Although [Sampson] expresses concern and love for the minor child while in court, his actions show something else."
It was thus apparent to the court that S. considered Paul his father, whereas "the same cannot be said for Sampson." S.'s lack of bonding with Sampson was "at least in part" due to Sampson's "own lack of efforts to see and be with the child." Even after therapeutic visitation was recommended in January 2007, Sampson did not immediately follow up, and no such visitation took place. There was only a letter from Sampson's attorney in May 2007 indicating that the attorney had contacted a local therapist, but no further communication occurred after that. Thus, Sampson allowed the passage of more time that could have been spent achieving a bond with S., whom he knew by then to be his biological child. "Had he truly desired to be a part of this child's life, why didn't he file his parentage action sooner or file a request for visitation in the parentage case? After all, when he started to be excluded from the child, he did nothing. This action has continued. Had he truly desired to be with the child, why didn't he immediately seek a court order for therapeutic supervision after his supervised visitation failed? It is true that he is biologically the father, but it takes much more than biology to be a 'daddy.' "
The court also noted that Sampson had not financially supported S. even though he was apparently able to do so. Paul, on the other hand, had provided support for the child since birth, and he had the interest and ability to continue that support in the future. Thus, taking into account all the evidence of both emotional bonding and financial support, the court concluded that the "weightier considerations of policy and logic must lie with Paul," who was "the only 'daddy' that this child knows."
Finally, the court acknowledged Sampson's request for notice to the Muscogee Indian tribe and for determination that S. was an Indian child. The court had discussed the issue of ICWA applicability at the June 8 hearing. At that time it had explained that until Sampson was determined to be the father, it could not decide whether S. was an Indian child. In the judgment the court ruled that the citation of section 175 was untimely; and in any event, the statute did not apply here, as this was "an original determination of parentage" rather than a "disestablishment" case.
Discussion
1. Applicability of Family Code Section 7612
Sampson first contends that the court erroneously "reduced the matter to a contest between presumptions: Paul's presumption based on his being married to Dorian at the time the child was born (Family Code § 7611(a)) and Sampson's presumptions based on genetic tests and receiving the child into his home an[d] openly holding him out as his natural child (Family Code § 7611(d))." By engaging in this weighing process, Sampson argues, the court misinterpreted section 7575 and ignored the legal effect of the VDP.
Section 7573 provides that a completed VDP "shall establish the paternity of a child and shall have the same force and effect as a judgment for paternity," with specified exceptions. One of those exceptions is outlined in section 7575, which allows a parent to rescind the VDP within 60 days (§ 7575, subd. (a)), or to move to set it aside within six months after an "initial order for custody, visitation, or child support based upon a voluntary declaration of paternity." (§ 7575, subd. (c).) Sampson's request to set aside the VDP did not meet the 60-day time limit; the provision for relief under Code of Civil Procedure section 473, subdivision (b), however, was available to him, as there had not yet been an order for custody, visitation, or child support when he sought to set aside the VDP. (Cf. County of Los Angeles v. Sheldon P. (2002) 102 Cal.App.4th 1337, 1346 [as no court had yet made paternity finding based on voluntary declaration, statutory period had not begun to run].)
The commissioner found that the VDP in fact had been set aside, as requested by Sampson and Dorian, when genetic tests were ordered. Sampson contends that the commissioner misinterpreted section 7575 to mean that genetic tests could not have been ordered unless the VDP declaration had been set aside. We agree that the statute does not create an automatic set-aside of a VDP merely by an order for genetic tests. However, we disagree that the commissioner was making that determination based on an erroneous legal presumption. Instead, he made it clear that while neither he nor Judge Woodhouse had expressly set aside the VDP, as a factual matter Judge Woodhouse must have implicitly honored the request by both Sampson and Dorian to set it aside. That judicial act was consistent with Sampson's declaration in support of the set-aside request, in which he checked the box on the form indicating that no judgment of paternity had been made in the matter. Subsequently, in his "Petition to Establish Parental Relationship" in November 2006, Sampson represented himself to be a presumed father who was willing to support S. "once paternity is established." In light of the requests by both signatories to the VDP, the court evidently exercised its authority to set aside the VDP under section 7575, subdivision (c)(1) on Code of Civil Procedure section 473 grounds, or alternatively under section 7575, subdivision (c)(4), which underscores the court's power to "[act] as a court of equity" in these cases.
The commissioner's finding – and the resolution of this dispute – would have been far easier had the visitation and genetic testing order included an express ruling on the set-aside request.
Having received the genetic test results showing that Sampson could not be excluded as the biological father, the court then proceeded in accordance with section 7575, subdivision (c)(5), which directs the issue of paternity to be resolved "as otherwise provided by law"—that is, by according Sampson presumed-father status under section 7611 and weighing that presumption against the presumption favoring Paul.
Sampson belatedly argues that he was given the wrong form to set aside his VDP, and that section 7646 was the statute that authorized the set-aside in these circumstances. This argument has been forfeited by failure to raise it below; but in any event, it is without merit. Section 7646 permits vacation of a judgment establishing paternity "if genetic testing indicates that the previously established father of a child is not the biological father of the child." Even if we accepted Sampson's premise that he was a "previously established father" within the meaning of this statute, the precondition it specifies did not occur, as genetic testing did not indicate that Sampson was "not the biological father of the child." Section 7646 is inapplicable.
Section 7645 defines "previously established father" to mean "a person identified as the father of a child in a judgment that is the subject of a motion brought pursuant to this article."
Furthermore, subdivision (a)(2) of section 7646 expressly states that it does not preclude a motion to set aside a VDP under section 7575, the provision under which Sampson made his request.
Thus, we must conclude that the court acted within its power in determining that the VDP had been implicitly set aside and that both Sampson and Paul qualified as presumed fathers. The court properly framed the issue for the parties as which presumption was founded on the "weightier considerations of policy and logic," including the best interests of S. (§ 7612, subd. (b).)
2. Applicability of ICWA and Section 175
Sampson further argues that the court erred as a matter of law by failing to apply ICWA and section 175. It is the tribe, he urges, not the court, that determines whether a child is an Indian child. Because he was a member (though not an enrolled member) of an Indian tribe, and in view of the established fact that he is S.'s biological father, Sampson maintains that the court erred in determining that S. was not an Indian child. Sampson also suggests that these proceedings involved the termination of the parent-child relationship and were therefore subject to ICWA.
Section 1903 of the Act defines "parent" as "any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established." (25 U.S.C. § 1903(9).) Paul and Sampson debate the applicability of this definition in the circumstances presented here, where Sampson is the biological father who once acknowledged paternity through his VDP but later sought to set aside that acknowledgement. We need not resolve this controversy, however. Even if we accept the premise that S. is an Indian child and Sampson is a "parent" within the meaning of 25 United States Code section 1903, ICWA nevertheless does not apply here.
The term "Indian child" means "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" (25 U.S.C. § 1903(4).)
The specific requirements of the Act reflect an express policy to maintain the integrity of Indian tribes, fueled by the recognition "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." (25 U.S.C. § 1901(4).) Accordingly, a state court must notify the tribe of an "Indian child" and allow the tribe to intervene whenever a party is seeking "the foster care placement of, or termination of parental rights to" that child. (25 U.S.C. § 1912(a); see In re Daniel M. (2003) 110 Cal.App.4th 703, 707.)
The specific provisions for jurisdiction and notice in ICWA make it clear that not every proceeding involving an Indian child subjects state court proceedings to the statutory scheme. Section 1911(a) of the Act, for example, explains that the applicable Indian tribe has exclusive jurisdiction over "any child custody proceeding" involving an Indian child. "Child custody proceeding" is expressly defined as a proceeding for foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. A transfer from state court to tribe jurisdiction generally must occur in a proceeding "for the foster care placement of, or termination of parental rights to," an Indian child who does not live on the tribe's reservation. (25 U.S.C. § 1911(b).) Similarly, intervention by the tribe must be permitted in any state court proceeding "for the foster care placement of, or termination of parental rights to, an Indian child." (25 U.S.C. § 1911(c).) Notice must be given to the tribe in "any involuntary proceeding" in state court when a party is seeking "the foster care placement of, or termination of parental rights to, an Indian child." (25 U.S.C. § 1912(a).)
Thus, the Act circumscribes the kinds of proceedings that trigger a court's duty to involve an Indian child's tribe. To comport with the policy declared by Congress in section 1901 of the Act, the tribe must be given notice and an opportunity to intervene and assume jurisdiction over an Indian child in an involuntary proceeding when the proceeding may result in removal of the child from the home or termination of the parent-child relationship. Clearly, this was not a "child custody proceeding" as defined by Congress. S. was not being removed from his home but remained with his mother. There were no parental rights to be terminated by either the state or Dorian. Instead, the action had been initiated by Sampson himself to establish the parental relationship in the first place. (See J.A.V. v. Velasco (1995) 536 N.W.2d 896, 901 [ICWA inapplicable in paternity action; if action is unsuccessful, parent-child relationship will not be terminated but "will simply never be established"].) The requirements of ICWA did not come into play. Sampson's reliance on In re Crystal K. (1990) 226 Cal.App.3d 655 and In re Adoption of Lindsay C. (1991) 229 Cal.App.3d 404 is misplaced, as each of those cases involved an action to terminate the existing parental rights of an Indian father.
A fortiori, section 175, which emphasizes the Legislature's commitment to the policies and dictates of ICWA, is inapplicable.
3. Application of Section 7612
Sampson's final contention is that even if a balancing process was appropriate under section 7612, the court abused its discretion in weighing the relevant circumstances. He specifically argues that (1) the court failed to consider the policies underlying ICWA, (2) the court failed to consider guardianship proceedings involving Dorian's nephew, and (3) the court restricted Sampson's testimony about his efforts to build a relationship with Dorian and S.
Sampson submitted as evidence a petition to remove Dorian as the guardian of her brother's son, Jacoby, brought by Jacoby's maternal uncle.
The first point is unsustainable. The court did not fail to consider the policies of ICWA, but expressly determined that the Act did not apply in the circumstances presented. The second and third points are unaccompanied by any discussion of how the court abused its discretion, nor is such abuse apparent on this record. Sampson was permitted to testify at length, in narrative form, regarding his "on and off relationship" with Dorian before and after S.'s birth. His offer of evidence pertaining to Dorian's nephew was properly rejected as "not relevant" to this action. The court considered all relevant evidence proffered by Sampson and engaged in a thoughtful balancing process consistent with section 7612 and S.'s best interests. No abuse of discretion is shown.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.