In In re Nicholas H.

In In re Nicholas H. (6/6/02) 2002 Daily Journal D.A.R. 6249, the California Supreme Court has ruled that when a man seeks parental rights, the presumption that a man who receives a child into his home and openly holds the child out as his natural child is not necessarily rebutted by clear and convincing evidence that he is not the biological father.

Family Code § 7611(d) creates a presumption that a man is the natural father of a child if he “receives the child into is home and openly holds out the child as his natural child.”  Pursuant to Family Code § 7612(a), that presumption is “a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.”

When Kimberly H. was pregnant with Nicholas, she moved in with Thomas G., who was not Nicholas’s biological father. Both Kimberly and Thomas wanted Thomas to act as a father to Nicholas, so Thomas participated in the child’s birth, was listed on his birth certificate a the father, and provided a home for the child and Kimberly for several years. There was “undisputed evidence” that Nicholas had a strong emotion bond with Thomas, and that Thomas was the only father the child had ever known.  2002 Daily Journal D.A.R. at 6250.

Kimberly could not keep a job, was often homeless, took drugs, was sometimes violent, and had been in trouble with the law. She could not adequately care or provide for Nicholas.

Thomas, on the other hand, although “not a perfect candidate for fatherhood, if any such there be” [2002 Daily Journal D.A.R. at 6250 n.2], had been the one constant factor in Nicholas’s life.

During the course of a juvenile dependency proceeding, the juvenile court found that Nicholas had to be removed from his mother’s custody.  Kimberly claimed that Jason S. was Nicholas’s father; however, he did not come forward to assert any parental rights he might have, nor could the Social Services Agency locate him. Thomas acknowledged that he was not the biological father of Nicholas, but asserted parental rights in Hicholas.

The juvenile court found that the presumption of Family Code § 7611(d) that Thomas was Nicholas’s natural father had not been rebutted by his admission that he was not the biological father. The juvenile court held, “‘If I were to agree with County Counsel that [Thomas's] admission that he is not Nicholas’s biological father rebuts the presumption, then what we would be doing is leaving Nicholas fatherless.’” 2002 Daily Journal D.A.R. at 6250. Therefore, the court ruled, Nicholas’s placement should continue in Thomas’s home.

The Court of Appeal reversed, holding that the presumption of Family Code § 7611(d) is necessarily rebutted under section 7612(a) by the presumed father’s admission that he is not the biological father. Thus, the Court of Appeal ruled, the trial court had no discretion to find that Thomas was Nicholas’s father, leaving the child fatherless and homeless.

The Supreme Court concluded that this harsh result is not required by section 7612(a), and that the Court of Appeal had misread that statute and conflating it with section 7612(c).

Family Code § 7612(c) provides that “[t]he presumption under Section 7611 is rebutted by a judgment establishing paternity of the child by another man.” [Emphasis added]  However, the Supreme Court noted that no judgment had established paternity in Jason S. or anyone else.  Section 7612(a), on the other hand, is permissive; the presumption under Section 7611(d) may be rebutted in an appropriate action.

Further, the Court pointed out, section 7612(b) provides a mechanism for determining paternity among the competing claims of presumed fathers: “If two or more presumptions arise under section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls.”  Since there can be only one biological father, if the Legislature had intended that a man who is not a biological father can never be a presumed father, it would not have provided for such weighing.

In reaching its conclusion, the Supreme Court first rejected the appellate court’s interpretation of In re Zacharia D. (1993) 6 Cal.4th 435 and Adoption of Kelsey S. (1992) 1 Cal.4th 816. The appellate panel had cited those cases in support of its statement that “‘natural means biological.’”  2002 Daily Journal D.A.R. at 6251.  Contrary to the reading given those cases by the Court of Appeal, the Supreme Court noted, although those cases do not deal with the issue presented by Nicholas H., in those opinions the Court observed in passing that “it is possible for a man to achieve presumed father status, with its attendant rights and duties, without being the biological father” [Zacharia D., supra, 6 Cal.4th at 450 n.18] and that “even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a ‘presumed father’” [Adoption of Kelsey S., supra, 1 Cal.4th at 823 n.3].

The Supreme Court also pointed to the recent appellate case of In re Kiana A. (2001) 93 Cal.App.4th 1109, which expressly held that “biological paternity by a competing presumptive father does not necessarily defeat a nonbiological father’s presumption of paternity.”  93 Cal.App.4th at 1118.

Numerous other appellate decisions have reached the same result, e.g., Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, and Susan H. v. Jack S. (1994) 30 Cal.App.4th 1435. The Nicholas H. Court quoted with approval from Steven W., that, “‘The state has an “‘interest in preserving and protecting the developed parent-child … relationships which give young children social and emotional strength and stability.’” The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties.’” 2002 Daily Journal D.A.R. at 6251 (citations omitted).

However, although the Court made it clear that it was not reaching the specific question addressed by the appeals courts in Steven W. and Kiana A., namely whether under Family Code § 7612(b), biological paternity by a competing presumptive father necessarily defeats a nonbiological father’s presumption of paternity.

The Supreme Court also commented on another very recent case, In re Jerry P. (2002) 95 Cal.App.4th 793, which was ordered published by the Supreme Court on June 6, 2002, the same day Nicholas H. was decided. Jerry P. holds that “presumed fatherhood status, for purposes of dependency proceedings, is not necessarily negated by evidence the presumed father is not the biological father.” 95 Cal.App.4th at 797.  Again, however, the Supreme Court noted that it was not reaching the specific question raised by Jerry P., of what constitutional rights are enjoyed by a man who is not the child’s biological father but seeks to receive the child into his home and to achieve presumed father status.

And the Court pointed to an even more recent case, In re Raphael P. (4/15/02) 97 Cal.App.4th 716, reached the same result.

In re Olivia H. (1987) 196 Cal.Appp.3d 325, held to the contrary, that is that blood-test evidence that a presumptive father is not the biological father precludes him from establishing paternity. The Nicholas H. appellate court had relied on Olivia H. However, the Supreme Court analyzed Olivia H. and noted that it had misconstrued the statute on which it relied, the predecessor to Family Code § 7612(c), which provides that a presumption of paternity is rebutted by a court decree establishing paternity.

The Nicholas H. Court expressly disapproved Olivia H.

In conclusion, the Court analyzed the intent of the Legislature in enacting Family Code § 7612(a), that “‘a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.’” 2002 Daily Journal D.A.R. at 6253 (emphasis in original). The Court determined that the Legislature court not have intended the phrase “an appropriate action” to mean a case in which the effect of rebutting the presumption would be to leave a child fatherless.  Instead, that phrase must have been intended to apply to two presumed fathers, both vying for paternity, or a presumed father seeking to avoid the responsibilities of fatherhood.

At first glance, Nicholas H. may seem inconsistent with the Supreme Court’s last decision addressing the rebuttable presumption of paternity, In re Zacharia D., supra.  In Zacharia D., the Supreme Court had held that a biological father who waited to seek reunification services until the 18-month review hearing in a dependency proceeding was not entitled to presumed father status.  However, the unifying thread between these cases, as well as all of the cases cited with approval by the Nicholas H. Court, is the state’s “‘”‘interest in preserving and protecting the developed parent-child … relationships which give young children social and emotional strength and stability.’” The courts have repeatedly held, in applying paternity presumptions, that the extant father-child relationship is to be preserved at the cost of biological ties.’” 2002 Daily Journal D.A.R. at 6251 (citations omitted).

The theme of stability and continuity of parent-child relationships is frequently the touchstone of custody cases. For example, In re Marriage of Carney (1979) 24 Cal.3d 725 and Burchard v. Garay (1986) 42 Cal.3d 531, both speak to “the importance of protecting established modes of custody.”  [42 Cal.3d at 536] or “established mode of custody” [24 Cal.3d at 730]. And in Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, the Supreme Court upheld the application of the conclusive presumption of paternity created by Evidence Code § 621(a) (the predecessor of Family Code § 7540) against the mother’s second husband and against the child.  The majority in Michelle W. noted that the “public interest in protecting the family unit and promoting familial stability outweighs [the second husband’s interest” in establishing paternity. 39 Cal.3d at 360. That same interest was also emphasized in Estate of Cornelious (1984) 35 Cal.3d 461, which upheld the conclusive presumption of paternity in favor of the presumed father in a probate case, against blood-test evidence introduced to show that the deceased was in fact the biological father.

Viewed in this context, Nicholas H. is the latest in a long series of cases involving custody, paternity, and even probate estates, which give great weight to preservation of a child’s “established modes of living” and protection of the “developed parent-child relationship.”

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