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Court of Appeal:
Man Was Presumed Father of Girl He Took Into His Home
Opinion Says Parent-Child Relationship Established Though There Was No Blood Relationship, Man Was Not Biological Father, Adoption Proceedings Were Never Instituted; Decision Comes in Heirship Case
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal held yesterday that a woman who was taken into a household at the age of two and later held out as a couple’s own child is presumed to be a natural child of that couple and is entitled to inherit under intestate succession from a relative of the man who assumed the role of her father.
This so, Justice Truc T. Do wrote, even though the child was never legally adopted by the couple.
Do’s opinion affirms an order by San Diego Superior Court Judge Jeffrey Bostwick finding that Judith Scherber was an heir of Loch David Crane, who died intestate in 2018. Her entitlement to half of Crane’s estate, as the sole first cousin on Crane’s mother’s side, is contested by Shannon Wehsener, whose status as sole first cousin on the father’s side is uncontested.
Scherber died during pendency of the appeal and her estate is represented by her daughter, Wendy Jernigan.
Uncontested Facts
The facts were not contested. Scherber was born on April 6, 1949; her mother abandoned her and she lived with her father; the father dropped the child off one day in 1951 at the Tennessee residence of Charles and Frances Bloodgood for the purpose of their babysitting; he never returned; the Bloodgoods moved to Indiana 11 years later and commenced holding the child out as their own.
Scherber learned of the death of Crane from an heir-locating outfit.
The issue was whether Scherber is to be regarded as the presumed natural child of Charles Bloodgood (brother of Crane’s mother) based on Family Code §7611 which provides:
“A person is presumed to be the natural parent of a child if…[t]he presumed parent receives the child into their home and openly holds out the child as their natural child.”
Appellant’s Brief
Wehsener argued in her appellate brief that the “undisputed facts” show that Scherber was not the biological child of Bloodgood by blood, was not his stepchild, and was not legally adopted by him or in his foster care, commenting:
“Rebuttal of the natural parenthood presumption is required in this case, because granting [Bloodgood] the status of a ‘natural parent’ would reward the participants in an irregular adult-child relationship that is not sanctioned by the laws of their own home state of Indiana, and which would thwart California’s policies for the protection of children, ranging from requiring due process and oversight of foster placements and guardianships of children to encouraging prompt formal adoption and discouraging parents from giving their children away. This is an ‘appropriate action’ for rebutting the presumption.”
Do responded:
“We are not persuaded.”
‘No Facts’
She declared that Scherber “has proffered no facts, and thus impliedly concedes there are none, to rebut the presumption of natural parenthood between” Bloodgood and her. The jurist added that Scherber “overlooks the plain language of the same subdivision in the statute that provides ‘only...clear and convincing evidence’ may rebut the presumption of a natural parental relationship.”
Do supplied the italicizing.
She said that “even if the natural parent and child presumption…could be rebutted purely on pubic policy grounds—a premise we reject,” public policy would not be furthered by finding the presumption to be rebutted under the circumstances, explaining that recognizing a “natural relationship” between the Bloodgoods and Scherber promotes the state’s strong policy “of preserving the parent and child relationship.”
There was no elaboration as to how that policy is furthered in the situation where the Bloodgoods and Scherber are deceased.
Wehsener also contended that “California law is clear that the existence of a parent-child relationship is determined in the state where it was effected and maintained”; the relationship between Charles Bloodgood and Scherber “was established and maintained in Indiana”; and that Indiana law does not recognize a presumed “natural: parent-child relationship for the purpose of determining heirship. Do responded:
“Here, we conclude California law applies to determine parentage when a person claims to be an heir of an intestate decedent who was domiciled in California when he or she died, even if, as in the instant case, the parent and child relationship was effectuated outside California.”
She went on to say:
“[W]e are not concerned with the succession laws of Indiana, or any other state or country for that matter, but only the succession laws in California.”
The case is Wehsener v. Jernigan, 2022 S.O.S. 6379.
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