Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. MFL006277 of Madera County. D. Lynn Jones, Judge.
W.T., in pro. per., for Plaintiff and Appellant.
Tritt & Tritt, James F. Tritt; Law Office of Debora A. Paul and Debora A. Paul for Defendant and Respondent.
OPINION
CORNELL, J.
W.T. appeals from the judgment denying his petition to establish he is the biological father of M.M. He argues (1) he was denied his right to due process; (2) the family court erred in denying his request for a continuance; and (3) there was not substantial evidence to support the judgment. We disagree with his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
We first look at the events leading to the filing of the petition in this case. Much of this information is derived from testimony taken in the motion of K.M., M.M.’s mother, for a protective order, which is not an issue in this appeal.
W.T. and K.M. were involved in a sexual relationship in the mid-1990’s. It appears that W.T. and K.M. did not have any contact for a number of years after the relationship ended.
M.M. was born in 1996, after the relationship between W.T. and K.M. ended. The original birth certificate lists the father as “UNKNOWN.” This is consistent with Health and Safety Code section 102425, subdivision (a)(4), which prohibits naming a father on a birth certificate when the parents are unmarried, unless before the birth certificate is prepared, the mother and father prepare a voluntary declaration of paternity.
On August 19, 1999, an amended birth certificate was issued listing C.R. as the father of M.M. Health and Safety Code section 102425, subdivision (a)(4) permits the addition of a father to a birth certificate “only if paternity for the child has been established by a judgment of a court of competent jurisdiction or by the filing of a voluntary declaration of paternity.” Therefore, it appears that C.R. signed a declaration of paternity admitting he was the father of M.M., as has been repeatedly represented to the courts below, even though a copy of the document is not contained in the record.
The next significant event in this case occurred in July 2008 when W.T. initiated contact with K.M. W.T. alleges that during their conversation, K.M. informed him that he was M.M.’s father. K.M. denied making such a statement.
On July 31, 2008, W.T., appearing in propria persona, filed a petition to establish a parental relationship with M.M. pursuant to section Family Code section 7630. In his petition W.T. sought to establish he was M.M.’s biological father through genetic testing. K.M. filed an opposition, asserting the petition should be dismissed as untimely pursuant to section 7575, subdivision (b)(3)(A).
All further statutory references are to the Family Code unless otherwise specified.
On September 4, 2008, in a separate action, K.M.’s husband initiated a stepparent adoption of M.M. pursuant to section 9000 et seq. W.T. was listed as an alleged father of M.M., apparently in response to the petition W.T. filed. K.M. consented to the adoption without relinquishing her parental rights.
A hearing was held on W.T.’s petition on September 26, 2008. The family court continued the hearing to December 12, 2008, to permit W.T. to retain an attorney.
W.T. retained counsel, who appeared in the action on December 3. At the December 12 hearing, the family court continued the hearing until December 23. At the December 23 hearing, both parties were represented by counsel. Testimony was obtained regarding K.M.’s request for a restraining order. The testimony was not concluded, and the hearing was continued to January 26, 2009.
On January 26 W.T.’s counsel withdrew from the action and W.T. again represented himself. At the hearing on that date, W.T. requested a continuance. The family court continued the matter to February 25, 2009, for trial setting.
At the February 25 hearing, the family court concluded that W.T.’s petition was untimely and denied the petition. A judgment of nonpaternity was entered.
DISCUSSION
The Trial Court Action
W.T. filed a Judicial Council approved form petition. The form indicates that the petition was prepared for claims filed pursuant to section 7630. W.T., however, cannot meet the requirements to file such a petition. Section 7630, subdivision (a) permits a child, the child’s natural mother, or a man presumed to be the child’s father to bring an action to determine the existence or nonexistence of a father-child relationship. W.T. is not the presumed father of M.M. C.R. is because he signed and filed with the appropriate agency a voluntary declaration of paternity. (§§ 7611, 7573.) C.R.’s filing leaves W.T. with a claim as possibly the biological father. Therefore, W.T. cannot attempt to establish he is the biological father of M.M. through section 7630.
Section 7631 does provide W.T. a remedy, as the family court recognized. (Adoption of Alexander M. (2001) 94 Cal.App.4th 430, 440.) Section 7631 states that “a man not a presumed father may bring an action for the purpose of declaring that he is the natural father of a child having a presumed father … if the mother relinquishes for, [or] consents to … the adoption of the child.” W.T. meets the requirements of this statute because (1) K.M. consented to the adoption of M.M.; (2) M.M. had a presumed father; and (3) W.T. was not the presumed father.
Simply because W.T. falls within the class of individuals included within section 7631, however, does not mean he will prevail. For W.T. to prevail, he would have to challenge successfully the voluntary declaration of paternity signed by C.R. The family court may set aside a voluntary declaration of paternity under specific conditions. (§ 7575, subd. (b)(1).) The family court must find that after genetic tests are performed, all the experts agree that the man who signed the voluntary declaration of paternity is not the father. (Ibid.) The notice of motion for genetic testing must be filed within two years of the child’s birth. (§ 7575, subd. (b)(3)(A).) As relevant here, the notice may be filed by the mother, the man who signed the declaration of paternity, or in an action to determine the existence or nonexistence of a father-child relationship pursuant to section 7630. (Ibid.)
W.T. cannot meet any of these requirements. His motion was not permissible under section 7630; he did not file the motion within two years of the child’s birth; and he is not the mother or the person who signed a voluntary declaration of paternity. Moreover, since W.T. cannot achieve the status of a presumed father, he cannot compel genetic testing. (In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026-1027.) Whether or not he is the biological father of M.M. simply is not relevant to any issue before the court. (Ibid.)
W.T.’s Due Process Claim
We now turn to each of the specific issues raised by W.T. First he complains that his right to due process was violated because the family court reached its decision without a hearing. This contention is factually incorrect. As noted above, the family court heard evidence on the question of a restraining order preventing contact between W.T. and K.M. and her family because of W.T.’s activities that could be described as stalking. The evidence was not completed, so the matter was continued to January 26, 2009.
W.T. appeared at the January 26 hearing and informed the family court that counsel was no longer representing him. W.T. requested, and the family court granted, a continuance to allow W.T. to collect evidence to establish that K.M. was being untruthful in part of her testimony. He also requested a continuance to obtain a new attorney. The family court continued the matter for 30 days.
The family court also noted at this hearing that K.M.’s counsel had filed points and authorities on the issue of the propriety of W.T.’s petition as instructed by the family court at the previous hearing. W.T.’s counsel had not filed points and authorities, despite being instructed to do so. At K.M.’s request, the family court tentatively ruled that W.T. did not have standing to petition to establish paternity. The family court’s analysis was consistent with our analysis above. The matter was then put over to the next hearing to permit W.T. or his new counsel to present authority and argument on the issue.
At the February 25, 2009, hearing, W.T. again appeared without counsel and informed the family court he would be representing himself. He had not filed any papers to dispute the tentative ruling. He was given the opportunity to argue his position. After hearing argument, the family court concluded that W.T. did not have standing to establish he was M.M.’s father.
The primary purpose of procedural due process is to ensure the party has a right to a hearing and an opportunity to be heard at a meaningful time and in a meaningful manner. (Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 532.) W.T. was present at the hearing on his petition and was given an opportunity to be heard. That he was unable to present a reasoned argument is irrelevant. He had the opportunity; so he had the process to which he was entitled.
W.T.’s Request for a Continuance
W.T. also argues the family court erred by not granting him another continuance. W.T. requested the continuance, but was unable to provide an explanation why he was unable to complete any of the necessary tasks since the prior continuance. In other words, it appears W.T. was asking for a continuance as a delaying tactic. A continuance will be granted for good cause, and the trial court has discretion to grant or deny a continuance. (People v. Frye (1998) 18 Cal.4th 894, 1012-1013, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 420, fn. 22.) Since W.T. did not have good cause for a continuance, the family court did not abuse its discretion in denying the request.
Evidence to Support Trial Court Ruling
Finally, W.T. claims the family court erred because the judgment was not supported by substantial evidence. His argument appears to be that the judgment should not have been entered because he did not know he was M.M.’s father. First, we must clarify that there is no evidence that W.T. is M.M.’s biological father. It is clear, however, that C.R. is the presumed father. It also is clear from the record that W.T. had no contact with M.M. for the first 12 years of the child’s life, and his petition in the trial court was filed more than two years after the birth of M.M. These undisputed facts are substantial evidence to support the judgment and compel denial of W.T.’s petition.
DISPOSITION
The judgment is affirmed. K.M. is awarded her costs on appeal.
K.M. filed two motions in this case. The first motion requests that we take judicial notice of the adoption order issued on August 21, 2009, finalizing the adoption of M.M. by his stepfather. The second motion seeks dismissal of this appeal as moot since the adoption is final. The adoption proceedings are the subject of an appeal in our case No. F057619. Both motions are denied for reasons that will appear in our opinion in case No. F057619.
WE CONCUR: WISEMAN, Acting P. J. POOCHIGIAN, J.