Martinez v. Vaziri

We conclude the trial court’s determination of no detriment under section 7612, subdivision (c) appears to have derived from an improperly narrow construction of the statutory language, resulting in the trial court’s failure to consider all relevant factors under the statute. Because the rebuttal of petitioner’s presumed parent status was contingent on the trial court’s evaluation of detriment under section 7612, subdivision (c), we will reverse the order denying the petition and remand for reconsideration.

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he Uniform Parentage Act (UPA; § 7600 et seq.), specifically sections 7611 and 7612, governs this action. The UPA defines the “ ‘[p]arent and child relationship’ ” as “the legal relationship existing between a child and the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations.” (§ 7601, subd. (b).) The paternity presumptions of the UPA “ ‘are driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child.’ ” (In re Nicholas H. (2002) 28 Cal.4th 56 , 65 [ 120 Cal.Rptr.2d 146 , 46 P.3d 932 ] (Nicholas H.).) One purpose of the UPA is “to distinguish those who have demonstrated a commitment to the child regardless of biology and grant them the ‘elevated status of presumed [parenthood].’ ” (E.C. v. J.V. (2012) 202 Cal.App.4th 1076 , 1085 [ 136 Cal.Rptr.3d 339 ].)

Here, the trial court determined petitioner to be a presumed parent of child pursuant to section 7611, subdivision (d), which provides: “A person is presumed to be the natural parent of a child if the person . . . [¶] . . . [¶] . . . receives the child into his or her . . . home and openly holds out the child as his or her . . . natural child.” (§ 7611, subd. (d).) Neither side contests this determination on appeal. The trial court found this presumption was rebutted, however, by clear and convincing evidence under section 7612, subdivisions (c) and (d) — a finding petitioner claims was erroneous for several reasons.

In enacting the current version of section 7612, subdivisions (c) and (d),^[2] the Legislature made express findings: “(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm. [¶] (b) The purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 [ 123 Cal.Rptr.3d 856 ] insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances. [¶] (c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents. [¶] (d) It is the intent of the Legislature that this bill will only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.” (Stats. 2013, ch. 564, § 1.)

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etitioner initiated proceedings to establish parentage of child pursuant to sections 7611, subdivision (d) and 7612, subdivision (c). Petitioner is child’s biological uncle. The mother (mother) is child’s mother and the respondent. Father is petitioner’s half brother. The court held an evidentiary hearing at

Mother testified that she “would agree that [petitioner] has been the male role model in [child’s] life.”^[3] “[Child] does refer to him as father,” she stated. Mother was aware that petitioner had “issues including substance abuse” but “believed he was clean and sober” until the November 2013 incident, when she became aware he had relapsed. As of the hearing, mother believed petitioner had regained and maintained his sobriety.

Regarding the parentage action, mother’s testimony was that “she absolutely acknowledges [petitioner’s] involvement and support of [child] in numerous ways, but is in a position where she is concerned that if she were to absolutely consent to this proceeding, that . . . might affect her custodial rights in the future.” Due to the November 2013 incident, which left “remarkable bruises” on child, CPS was “very clear . . . about the parameters of petitioner’s involvement,” causing mother to feel “very tom” and afraid that even though “she has continued to engage with the child therapist... in hopes that she’s doing everything right by allowing [child] to resume a relationship [with petitioner], ... at some point, some social worker can come into this picture and say, you know ‘you shouldn’t have been allowing for that, so we’re taking the child away.’ ” Regardless of the outcome of the parentage proceeding, mother had “no intention” of keeping child from petitioner and would continue to allow visitation as long as he remained drag free.

Father did not testify or interpose a viewpoint during the proceeding, except to disclaim at one point petitioner’s statement that father had shown no interest in being involved with child as a father. Petitioner testified on the subject of detriment if he were denied parentage. He stated it was obvious to anyone who had seen them together “that [child] recognizes me as dad . . . that she asks for me up to several times a day in order to spend time together.” Petitioner described their bond as “an emotional imprint of father and daughter,” which would suffer if he did not have “full authority to be there . . . and have me legally and safely protect [child] if something were to go wrong if I don’t have those parent rights.” Petitioner also testified that if child was not a “proper heir,” he would not be able to name her for benefits, such as life insurance, and that if mother became incapacitated or unable to care for child, she would have “no father figure to go with” and would be at risk of entering the foster system, “which is, number one, the most dangerous thing ever in all of our opinions as far as I’ve been told.”

In closing argument, petitioner, who was self-represented, objected that testimony about his purported drug use or relapse comprised “accusations and hearsay” and should not have been presented.^[4] He argued the evidence presented by both sides showed he had satisfied the test to be determined a presumed parent pursuant to section 7611, subdivision (d). He pointed to the responsibilities he would have if granted parentage, including financial, and the fact that as a parent, he would be held accountable for any potential mistakes. He also argued that under the statutory scheme, being named a third parent would not impinge upon the rights of child’s mother or biological father.

The trial court stated its findings on the record. The court first determined that petitioner satisfied his burden of proof under section 7611, subdivision (d) to establish himself as a presumed parent of child. The court then made findings under the clear and convincing standard of section 7612, rebutting the presumption. The court found that recognizing only two parents, mother and father, would not be detrimental to child under section 7612, subdivision (c). The court reasoned there would be no harm from “removing the child from a stable placement,” because that removal had already occurred “some time ago.” Based on this finding, the court concluded that pursuant to section 7612, subdivision (d), petitioner’s presumption of parentage was rebutted by the earlier judgment establishing father as a natural parent.

The trial court also made findings on specific factual issues. It credited mother’s testimony that she would continue to support the relationship between petitioner and child. It noted the possibility of consequences adverse to child’s best interest if the juvenile court were to consider mother’s actions to be inconsistent with the best interest of the child.^[5] And it deemed

Mother, as a self-represented party, is not exempt from these rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229 , 1246 [ 19 Cal.Rptr.3d 416 ] (Nwosu) [appellant representing himself in propria persona is not exempt from procedural rules on appeal]; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200 , 1210 [ 51 Cal.Rptr.2d 328 ] [party appearing in propria persona “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys”].) Inasmuch as the factual assertions in mother’s response do not comply with these procedures, this court will disregard them.^[6] (See In re S.C., supra, 138 Cal.App.4th at p. 407 [contention unsupported by record citation will be deemed forfeit]; Nwosu, supra, at p. 1246 [failure to comply with appellate rules will forfeit those arguments].) To the limited extent the concerns relayed in mother’s brief may be considered argument pertaining to an issue clearly identifiable in the record on appeal, we will consider those points.

In finding there would be no detriment to child based on “the harm of removing the child from a stable placement” under section 7612, subdivision (c), the trial court stated “that [removal] has already occurred well over— well, back in May of 2013, or perhaps that was November of 2012, some time ago. . . . [C]ertainly the Court’s ruling today would not be removing the child from that environment.” Petitioner contends these references are to the fact that petitioner moved out of mother’s house in May 2013, or that he was not permitted to see child for six months starting in November 2013.^[7] Petitioner argues this interpretation of the statute was flawed and contrary to the statutory purpose of the presumed parent presumptions, because it is the child’s relationship with the presumed parent, not simply their living arrangement, that must be considered. (See, e.g., R.M. v. T.A. (2015) 233 Cal.App.4th 760 , 780-781 [ 182 Cal.Rptr.3d 836 ] [affirming parentage judgment for the

The phrase “stable placement” is not defined in the Family Code, nor do any published cases interpret this recent addition to section 7612. We need not attempt to construe “stable placement” as a stand-alone phrase, however, because as a matter of basic statutory interpretation, the words must be construed in context. The “fundamental task” of the court in any act of statutory interpretation “is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.” (Estate of Griswold (2001) 25 Cal.4th 904 , 910 [ 108 Cal.Rptr.2d 165 , 24 P.3d 1191 ].) We start “ ‘by examining the statutory language, giving the words their usual and ordinary meaning.’ ” (Id. at p. 911.) The plain “meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727 , 735 [ 248 Cal.Rptr. 115 , 755 P.2d 299 ].)

In the amended section 7612, subdivision (c), the phrase “harm of removing the child from a stable placement” is in reference to the relationship “with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.” (§ 7612, subd. (c).) Any consideration of the child’s “stable placement” therefore must be in relation to the ongoing source or sources of fulfillment of the child’s physical and psychological needs for care and affection. Properly viewed in the context of the UPA provisions governing the parentage presumptions, these sources of care and affection may arise out of the child’s living arrangement, but may equally arise out of an alternative arrangement. Thus, in R.M. v. T.A., the appellate court affirmed the unrebutted presumption of parentage for the mother’s boyfriend, even though he had never lived with the young child and the mother had conceived with the stated intent to raise the child as a single mother. (R.M. v. T.A., supra, 233 Cal.App.4th at pp. 780-781.) The appellate court explained that although the mother “may have initially intended to raise Child as a single parent, . . . during the first two years of Child’s life Mother’s relationship with RM developed such that RM, with Mother’s full support, undertook a parental role and established a parent-child relationship with Child.” (Id. at p. 781, italics added.)

The critical distinction is not the living situation but whether a parent-child relationship has been established.^[8] “ ‘[T]he premise behind the category of

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he order denying petitioner’s request to be deemed a third parent to child is reversed. The matter is remanded for a hearing to reconsider the issue of detriment under Family Code section 7612, subdivision (c) consistent with this opinion, the outcome of which will determine whether the action is an appropriate one for finding that more than two persons with a claim to parentage are parents, or whether petitioner’s presumed parent status is rebutted under Family Code section 7612, subdivision (d). Petitioner is entitled to costs on appeal.

Rushing, P. J., and Márquez, J., concurred.